State v. Timmens

Elandrau, J. By the Court. The indictment charges the offence to have been committed in the County of Hennepin. The proof shows that it was committed on board of a steamboat while navigating the Minnesota river, and while the boat was in that part of the river which forms the boundary line of Hennepin county. This clearly brings the- case within that part of Section 89, page 761 of the Compiled Statutes, which provides that “ When any offence shall 'have been committed within this Territory, (State) on board of any vessel navigating any river or lake, an indictment for the same may be found in any county through which or any part of which such vessel shall be navigated during or in the course of the same voyage or trip.” The boat was proven to have been navigated through Hennepin county during the same voyage or trip on which the offence was committed. In such, case the Statute is satisfied — 331 — by alleging the offence to have been committed in the county of Hennepin. The principal question upon this branch of the case, is whether the Judge erred in the charge he gave to the jury. His charge amounts to this: A refusal to charge that the crime must have been committed within the limits of Hennepin county; and a positive charge, that “ if they found the offence to have been committed on board a boat on the Minnesota river at the time charged, that the court had jurisdiction.” And also the further charge, “ that the jury might determine from the evidence before them whether the offence was committed upon the Minnesota river within the limits of Hennepin county.” Although this charge as it appears in the bill of exceptions, is not as clear upon this point as could have been desired, yet being of the opinion that it was sufficient for the boat to have passed through Hennepin county on that trip, to have conferred jurisdiction upon the courts of that county, we cannot see that the Defendant was in any way prejudiced by the charge. An allegation in the indictment that the offence was committed in a certain county, is sustained by proof of its having been committed on a vessel which passed through that county on a voyage, during which the act toot place. The fourth section of the Act of February 25,1856, attempting to mate some change in the boundaries of Hennepin county, and the Joint Resolution of the same day probably designed to correct the defects of the act, both define impossible boundaries, which cannot be followed. It would require a clear act of legislation on our part, to decide that the legislature meant in these acts, one thing more than another, and we feel that it is far safer to disregard both than to set so dangerous an example as an arbitrary guess at their meaning would be. There was no misnomer. The girl was a French Canadian, and the Defendant spolce French, as appears from the evidence. “ Where a name appears to be a foreign one, a variance of a letter which, according to the pronunciation of that language, does not vary the sound, is not a misnomer. Petrie vs. Woodworth, 3 Cains R. 219. The name “Forest ” is pronounced in French as if it was spelled lFo-ray,” which is almost iden — 332 — tical in sound with the name of the girl as proven on the trial, which was “ Fonrai,” and the Christian name being the same the Defendant could not have been misled or in any manner prejudiced'by the misspelling. The Statute creating the offence of adultery under promise to marry is in these words: “ Any unmarried man who under promise of marriage * * * shall seduce and have illicit connexion with any unmarried female of previous chaste character, shall be guilty of a misdemeanor,” etc., “ but no conviction shall be had under the provisions of this section on the testimony of the female seduced unsupported by other evidence.” A conviction cannot be had under this Statute upon the testimony of the woman seduced unless she is corroborated upon every material point necessary to the perfection of the offence, to wit: the promise to marry, the seduction under such promise, and the previous chaste character of the party seduced. Now it cannot be intended that by being corroborated, the statute means there shall be proof of these facts, sufficient in itself to establish them independently of the testimony of the girl, as that would render the Statute practically null. Parties seldom seek publicity in such matters. From their nature they transpire in secret, and it is only by accident that any positive proof can ever be brought to bear upon them except through the parties themselves. The corroboration . therefore intended by the Statute, is proof of those circumstances which usually form the concomitants of the main fact sought to be established, which circumstances should be sufficiently strong in themselves, and pertinebt in their bearing upon the case, to satisfy the jury of the truthfulness of the witness in her testimony on the principal facts. In this case the woman testified positively to the promise to marry, and the seduction which followed, and also that she had never had illicit intercourse with any man other than the Defendant, and with him only under and by reason of his continual and repeated promises to marry her. In the fact of the promise she is supported by both her parents, who testify to the admissions of the Defendant, his admonitions to their daughter to be faithful to her — 333 — vow to him, at the time another man wished to marry her. Also by the consultations she had with them concerning the marriage, and her preparations for the same, all of which were ■competent evidence in corroboration of this fact. In the fact of the illicit connection with the Defendant, she is also supported by her father, who testifies to an intimacy between them, and all the circumstances of their being on the boat at the time and place alleged. It also appears that the Defendant was the Captain of the boat, a circumstance which could be considered as affording facilities for the act. As to her character, in addition to her own statement of facts, she is shown to have been a constant inmate of her parents’ house, and was during the time, sought in marriage by another man. Although the Judge declined to charge the jury on some of the propositions suggested! by the Counsel for the Defendant exactly in the manner of the request, in relation to the question of corroboration of the prosecuting witness, on the previous chastity of her character, yet in what he actually charged, he covered all that was properly requested of him by the Defendant’s Counsel substantially and fully, and gave them the law correctly upon these points. He did charge “That unless there be evidence other than that of the female sufficient to indicate the commission of the offence, the Defendant must be acquitted.” He also charged, “ That if the jury find that the Defendant had carnal intercourse with the witness at the time and place in the indictment charged, under a promise to marry, the jury may convict, although she may have had carnal connection with the Defendant previously, provided she had reformed and was chaste at the time of the commission of the offence.” And also, “ That in order to convict the Defendant it was necessaiy for the prosecution to have corroboration in all the material points in the case.” And on the subject of chastity, he again said: “ If you find, gentlemen, from the evidence and the facts in the case of which you are the exclusive judges, that she was not unchaste in principle, but in her former intercourse with him, yielded because of her affection fpr him, and because of her trust in his faith, that he would marry her, and on her discovery that he disappointed her, from principle had reformed at and before the time charged, — 334 — then in the eye of the law she was a chaste person at the time of the commission of the act, and if done under a promise of marriage andthefacts are established by competent and satisfactory evidence, you must find a Verdict of guilty, provided also you find the other facts true.” This embraces the law on the contested points, quite favorably for the prisoner. It instructs the jury that the prosecuting witness must be corroborated on every material point; that such corroboration must be sufficient in itself to indicate the commission of the offence independent of the evidence of the prosecuting witness. That this witness must have been of previous chaste character, and that all these facts are exclusively for the jury to find upon the evidence. The Judge was right in refusing to withhold .these questions from the jury, as there was some evidence in corroboration on each of them. He was right also in refusing to hold, that because the prosecuting witness had previously had connexion with the Defendant, that she could not be of chaste character. When a man enlists the affections of a woman, and by promising to make her his wife, creates between them the most confidential and sacred of relations, and by this means succeeds in obtaining from her concessions, sinful and impure, it is true, but from their very guilt, proof of the depth of the love and confidence which extorted them, and aggravates his treachery by continuing before his victim the delusive hope that he will yet redeem his pledge, and thus compels her to yield anew, until at last his infidelity is rendered certain by his marriage with another, and she in the despair of exposure and shame, calls him to an account before a court of justice, the law will be slow to permit him to object, that by reason of her acts, continued perhaps to shield him from disgrace, she was a woman of unchaste character. The law has provided for the case of a simple illicit connexion between a man and a woman, and makes it fornication. But to perfect this crime there must be superadded the promise of marriage, and the chaste character oí the woman, or in other words her seduction under promise of marriage. The law does not mean that a man, even if he promises to marry a woman, and by reason of his promise obtains from her illicit — 335 — favors, shall be punished under this act, unless he also seduced the woman from her chastity. If she had previously had illicit intercourse with other men, and had made a reformation on principle, the law will even then protect her, and punish her seducer; but it would be a far different case where a woman had been before seduced by one man, and claimed a reformation to have taken place before her second fall with another, from one, where the woman had never yielded her virtue save under the mitigating circumstances of a promise to marry; but in either case the facts must be submitted to the jury when there is corroborating evidence, and their verdict, as in any other case, will not be disturbed unless greatly against evidence. A new trial is denied and the case remanded. Chief Justice Emmett dissents.