State v. . O'Higgins

CLARK, C.J., concurring, points out the discriminatory feature of the statute. Defendant was convicted on the second count, and from judgment pronounced thereon appealed. The statute under which the defendant was indicted (Rev. 3360), is as follows: "If any male person (709) shall abduct or elope with the wife of another, he shall be guilty of a felony, and, upon conviction, shall be imprisoned not less than one year nor more than ten years: Provided, that the woman, since her marriage, has been an innocent and virtuous woman: Provided, that no conviction shall be had upon the unsupported testimony of any such married woman." The points presented by this appeal may be stated as follows: (1) Was there any evidence that the eloping wife had been, since her marriage, an innocent and virtuous woman? (2) Was evidence that the defendant abandoned his two motherless children when he eloped with the woman admissible? The husband testified that his wife was not a bad woman; that he was "wrapt up in her," and that he knew that his wife was an *Page 762 innocent and virtuous woman. We think this evidence tends very strongly to establish the virtuous character of the wife by the person who had opportunity to know her better than any one else, and that it was amply sufficient to justify the verdict of the jury. The evidence that the defendant abandoned his motherless children in order to elope with Mrs. Miller was competent to prove how strong the infactuation was which induced him to leave his own children in a helpless condition in order to elope with another man's wife. In charging the jury, his Honor placed the matter clearly before them, and we think his definition as to what constitutes elopement is in accord with established authority. 2 Bl. Com., p. 130; Black's Law Dict., p. 418. These authorities declare an elopement to be the act of the wife, who voluntarily deserts her husband to go away with and cohabit with another man. This is substantially what the judge told the jury. No error.