Bailey v. O'Bannon

Philips, P. J. Various errors aré assigned as grounds for reversing the judgment of the lower court, which will be considered in their order. I. The insufficiency of the plea in abatement is raised at this hearing. The statute (sect. 438) prescribes that the plea in abatement shall put ‘ ‘ in issue the truth of the facts alleged in the affidavit on which the attachment was sued out.” The plea in question is as follows: — 46 — “Now comes said defendant, for his plea in abatement herein, denies the truth of every allegation or statement set forth in plaintiff’s affidavit for attachment in this cause.” Plaintiff’s contention is that the plea must be a specific denial of the facts alleged in the affidavit as grounds of attachment. We deem it sufficient, for the purposes of this case, to say that plaintiff took no exception to this plea before the trial, by motion or otherwise, nor during the progress of the trial, but treated the plea as putting in issue the truth of the facts alleged' in the affidavit, and never discovered its imputed deficiency until after the jury returned a verdict against him. The plea was certainly good after verdict. Rev. Stat., sects. 3569-3581-3586. II. It is assigned for error that the circuit court improperly permitted the defendant to put- in evidence the former petitions filed in this cause by the plaintiff. It appears from the original petition, filed October 12, 1885, that the date of the alleged seduction was laid “ on or about the first day of November, 1884.” In March, 1886, the plaintiff filed an amended petition, in which the date of seduction was laid “as of the fifteenth day of October, 1884.” The second amended petition, on which the cause was tried, was filed November 16, 1886, in which the date of seduction was alleged to be November 1, 1883. The proximate date of this seduction became quite material at the trial, especially in view of the fact that the plaintiff was seeking to exclude, and actually succeeded in excluding, certain evidence offered by the defendant, on the ground that the first act of seduction occurred in November, 1883. The defendant, therefore, offered in evidence the first two petitions filed by plaintiff, as bearing on this issue. It is not disputed that an amended petition takes the place of the former petition; and for the purposes of the trial and the record the former pleading is deemed as abandoned, and no longer in the case. But it does not follow that this should prevent the opposite party, under circumstances — 47 — like these, from employing the abandoned pleadings in evidence as admissions, and contradictory [statements by the pleader. I recall the case of Hodges v. Torrey (28 Mo. 99-108), in which Judge Scott strongly animadverts upon the fact of the inconsistency between the successive answers filed therein by the defendant; and that he drew therefrom unfavorable inferences to the ‘justice of the claim set up by defendant in the latest answer. Certainly it would have been competent to put the former answers in evidence if it was admissible for the court to consider the defendant’s cause as weakened by the inconsistency or contradiction in the allegations contained in them taken as a whole. This question, as I conceive, was directly involved in the ruling of the Supreme Court in Anderson v. McPike (86 Mo. 298). There a former answer, in the pending cause, was put in evidence by the plaintiff. This action of the trial court was assigned for error. It is obvious that the learned counsel, concerned in that case for the defendant, hardly questioned the competency of the evidence; but insisted that the answer should not have been admitted' by the court without preliminary proof showing that the attorney who filed it was authorized thereto by the defendant. The court say: ‘‘ Prima facie the original answer of defendant was competent evidence against the defendant.” Although the learned counsel for plaintiff asserts that the case of Dawzelot v. Rawlings (58 Mo. 75), is not relevant, as it merely decided that admissions made in pleading in another suit may be used against the party, yet, Sherwood, J., thought otherwise, as he cites this case in support of the assertion above quoted, he writing both opinions. Indeed, it is to me strange logic that would admit the pleading of the party in another action as an admission, while excluding it in the very cause in which it was filed. It is the formal statement of the party, which, of course, he is at liberty to explain, just as was done by the testimony of plaintiff’s counsel in this case. — 48 — The case of Priest v. Way (87 Mo. 17) merely holds that a deposition of a party, taken by the adverse party, is inadmissible as a deposition when the party is present in court and may be examined orally ; and the deposition being excluded as such it would be an evasion to hold that it might yet be employed against Mm as an admission. It would be but a trap to permit the party who has resorted to the questionable practice of taking the adversary’s deposition, solely, as is too often the case, for the purpose of ascertaining Ms case, to permit him to use it as an admission when circumstances at the trial make it to Ms advantage thus to employ it. The case of Anderson v. McPike is the last direct utterance of the Supreme Court on the question under review, and we will follow it. III. The refusal of the court to give the following instruction is assigned for error: “The only issue for the jury to determine is whether the defendant seduced Ollie Bailey, the daughter of plaintiff. Seduction is the act of a man inducing a woman to commit unlawful sexual intercourse with him. If the jury believe, from the evidence, that the said Ollie Bailey was a chaste and virtuous unmarried' female, and that while she was so chaste and virtuous, and unmarried, the defendant, by some art, blandishment, persuasion, or promise, led her aside from the path of virtue, on or about the month of October, 1883, and thereby induced her to have, and she did have, sexual intercourse with Mm; whether by such intercourse the said Ollie Bailey became pregnant or hot, you will find the issues for the plaintiff. And you are further instructed that the law presumes that said Ollie Bailey toas chaste and virtuous up to the time she admits that she had sexual intercourse, and this presumption continues until it is overcome by evidence that reasonably satisfies you that she was unchasteP The court gave all of said instruction, save the portion in italics. We are unable to perceive how the plaintiff could possibly have been injured by the omis — 49 — sion of that part of the instruction. The converse of the proposition was not announced by the court in any declaration of law given. Í am unwilling to believe that any jury need to be told to indulge a presumption in favor of the original continence' of woman in this country. The law which makes the presumption, in a proper case, is but the reflection of the universality of this sentiment among a highly civilized people. The law presumes every man honest ; but even in an action 'for fraud the defendant may not-be entitled to an instruction as to such presumption. It is simply a question as to the weight of evidence touching the particular transaction. 1 Whart. Evid., sect. 47; Simpson v. Westenberger, 28 Kan. 759. As is said in West v. State (1 Wis. 209): “But these excellent and humane presumptions, so pregnant with the testimony which they bear to the dignity and honor of human nature, are always tó be used, in the administration of justice, as a weapon of defence, not of assault. They are the shield of the accused, not the sword of the prosecutor. * * * If the prosecutrix were to change places, and were she indicted for lascivious conduct, then, indeed, the legal presumption would come to her aid and her chastity would be presumed. But when the state accuses one of its citizens with the violation of the chastity of another of its citizens by seduction, the law presumes the accused to be innocent of the entire offence until the contrary appears. The state cannot be permitted to presume the immediate preexistence of that chastity with the destruction of which the defendant is charged. One act of illicit intercourse affords no presumption that another has not preceded it. The error consists in the instruction which the court gave the jury to the effect that the law presumed that she was previously of a chaste character, independent of any proof whatever.” In the case at bar the plaintiff is not invoking the presumption of his daughter’s chastity as a weapon of defence, where it is assailed, but he is attempting to use — 50 — it as a weapon of offence in an action predicated upon an allegation that the defendant has violated an existing state of chastity. The burden rested on him. And where he admitted the act of incontinence with the defendant, why the presumption should be indulged in favor of an immediate preexisting state of chastity is not clear to my mind. IV. Complaint is made of the following instruction given on behalf of defendant: “The jury are instructed that in laAv seduction means to deceiAm, to corrupt, and to draw aside from the path of virtue one who, at the time she is approached, is honestly pursuing that path, and that seduction can only operate upon one who was previously chaste. Therefore, unless the jury believe, from the preponderance of the evidence, that the defendant, by means of inducements or promises, deceived and misled Ollie Bailey, about the month of October, 1883, and that she was, prior thereto, of chaste character, and by means of such inducements and promises had sexual intercourse with her, you will find the issues for the defendant." The objection is, that “deceit is no element of seduction, for it may take place without any deceit being-practiced." The language of the instruction, it must be observed, is: “ Seduction means to deceive, to corrupt, to draw aside from the path of virtue," etc. In this connection the term could not reasonably convey to the mind of the jury any other idea than that the means employed was to draw the female aside from the way of virtue, being deceived into the act. For if she consented to the commerce from a mutual desire the plaintiff would have no cause of action. Comer v. Taylor, 82 Mo. 341. In the case of State v. Patterson (88 Mo. 94), the Supreme Court quote approvingly the language of Lewis, P. J., in Commonwealth v. McCarty (2 Clark, 135): “To constitute the offence several ingredients are requisite : (1) Seduction. This is to corrupt, to deceive, to draw aside from the right path. Every illicit intercourse is not seduction." So in Smith v. Milburn (17 — 51 — Iowa, 31): “The act of sexual intercourse alone does not constitute the crime of seduction. It must be accomplished by false promise,' artifice, or deception, to constitute the crime.” And, again, in Baird v. Boehner (33 N. W. Rep. 694): “ In an action for seduction, it is not sufficient to establish the fact of the sexual intercourse, but it must be shown the seducer accomplished his purpose by some false promise or artifice, or that the woman was induced to yield by flattery or deception.” V. We will not review in detail all the instructions. Taken as a whole the plaintiff got more than the law entitled him to. The only errors committed by the trial court were in favor of the plaintiff. The plaintiff made out a case of little strength. The daughter’s conduct in indulging so freely and frequently in the intercourse with defendant for a year previous to the period of conception, without protest or complaint; and her own language “I don’t have to,” when., the defendant, according to her own testimony, first proposed the cohabitation to her on an offer of the sum of five dollars, or a ring, and the readiness with which she yielded on the suggestion of a marriage, were not calculated to impress a jury favorably with her preexisting chastity, or with the essential qualities of seduction. We will not disturb the verdict. Judgment affirmed. Ellison, J., concurs. Hall, J., .absent.