People ex rel. Scharff v. Frost

Scott, J.: This is an appeal from. ari order dismissing a writ of habeas corpus sued out to test the validity of a sentence imposed upon the ■ relator. The question is whether or not the. Court of ‘ Genera,! Sessions had jurisdiction under, the circumstances to impose sentence, or wliether.it had been bereft of jurisdiction by-reason of the facts hereinafter related. We are disposed to think that this question can properly be raised by a writ of habeas corpus, and as the learned district attorney makes no-objection to this procedure, we shall proceed to treat the question as properly before us. The relator on April 24, 1908, pleaded guilty in the ■ Court of General Sessions to an indictment charging him with the crime of having seduced, under promise of marriage, -one Elsie Frankel. Between said date and May 6, 1908, lie married the complainant, with the knowledge of the court,: which, on May '6, 1908, suspended sentence upon him. Thereafter he and liis wife lived together,-and " on February 17, 1909, for reasons not disclosed by the record, the. suspension of sentence was revoked, and the relator was sentenced to imprisonment. He now claims that, by reason of his marriage to the complaining - Witness, he became immune from- punishment,' and that' the court was without legal power or jurisdiction .to pass sentence upon him!' The prosecution was conducted under the Penal Code, the sections- ' [475] of which relating to the crime of se'duction under promise of marriage read as follows: “ A person who, under promise of marriage, seduces and has sexual intercourse with an unmarried female of previous chaste character, is punishable by imprisonment for not more than five years, or .by a fine of not more than one thousand dollars, or by both.” (Penal Code, § 284; Penal Law, § 2175.) “ The subsequent intermarriage of the parties, or the lapse of two years after the commission of the offense before the finding of an indictment, is a bar to a prosecution for a violation of the last section.” (Penal Code, § 285 ; Penal Law, § 2176.) “ ISTo conviction can be had for the offense specified in section two hundred and eiglity-four, upon the testimony of the female seduced, unsupported by other evidehce.” (Penal Code, § 286; Penal Law, § 2177.) These sections are founded upon and are a substantial re-enactment of chapter 111 of the Laws of 1848, which read as follows: “ Any man who shall, under promise of marriage, seduce and have illicit connexion with any unmarried female of previpus chaste character, shall be guilty of a misdemeanor, and, upon conviction, shall be punished by imprisonment in a State prison not exceeding five years, or by imprisonment in a county jail not exceeding one year; provided that no conviction shall be had under the provisions of this act, on the testimony of the female seduced, unsupported by other evidence, nor unless indictment shall be found within two years after the commission of the offence; and, provided further, that the subsequent marriage of the parties may be plead in bar óf a conviction.” It is to be noted that the act of 18.48 expressly provided that the subsequent marriage might be pleaded in bar of a conviction, and while, under our simplified criminal procedure, special pleas have generally been abolished, yet the interposition of the fact of marriage as a reason why the prosecution should not proceed partakes of -the nature of a special plea in bar. “ By a plea in bar the defendant shows, by matter extrinsic of the record, that the indictment is not maintainable.” (1 Stark. Or. PI. 316; 1 Colby Or. L. 276.) Under the former practice a plea .in bar could be interposed, as matter of right, only when the accused was arraigned and before he had plead “ not guilty.” After that he might withdraw his plea [476] and plead in bar only by leave'of the court." (People v. Allen, 43 N. Y. 28.) Begarding the plea of subsequent marriage as analogous to a plea in bar under the former practice, it would seem that the fact' upon which the special plea is founded must be one which exists before arraignment, and certainly before conviction. The subsequent marriage of a seducer with his victim is accepted by the law, for reasons of public policy, as a condonation of the crime against the People, to the extent that a prosecution therefor will not be pressed. It seems to be reasonably clear that to have this effect the marriage must take place before the prosecution ,has been proceeded with to conviction. If it takes place after, it may properly be considered by the court with reference to the suspension of sentence, or by the Executive with reference to a pardon, but cannot, in any proper sense, be said to bar a prosecution which has already ripened into conviction. It may be that it would be to the advantage of betrayed women and their offspring that, immunity should follow npon marriage, even if contracted after sentence, but that is a matter for legislation and not for judicial construction. The language of the statute is even open to the construction that in order to bar a prosecution the marriage must take place before the indictment, just .as the lapse of time after the commission of the crime, which also bars a prosecution, must have been completed before indictment. Our conclusion is that the Court of General Sessions had jurisdiction to impose sentence upon the relator. Consequently, the order dismissing the writ is affirmed and the relator remanded to custody. Ingeaham and Laughlin, JJ., concurred; Claeke and Houghton, JJ., dissented.