(140 Tenn. 134)

complished by defendant in December, 1914, FINCH V. GIBSON.

and the relations between them established (Supreme Court of Tennessee. May 25, 1918.) at that time continued until about July, 1915.

Defendant denies that he had any illicit re1. SEDUCTION Om 5- WILLINGNESS OF FE-lations with plaintiff at any time, and offerMALE.

The question in seduction cases is whether ed proof to show that plaintiff' was not a the female's willingness is induced by some chaste woman at the time of her alleged seact, representation, or statement, in the absence duction. This latter proof included evidence of which there would be no willingness, in which of her illicit relations with other men before case there is seduction, or whether such willing the time of the alleged seduction by defendness arises out of sexual desire or curiosity, so that the female only seeks opportunity for com- ant, and which continued at intervals until mission of the act.

about July, 1915. Defendant offered the tes2. SEDUCTION Om 5—REPRESENTATIONS—"AR- timony of one Sanders, which tended to show TIFICE''-“DECEPTION.'

The representation of the man that pregnan- the immoral character of plaintiff after the cy will not result from natural sexual inter- alleged seduction, but during the period covcourse will not constitute artifice, deception, or ered by her alleged relations with witness promises, since such representation is contrary Tucker. This evidence was held incompeto the well-known natural result of such act. [Ed. Note. For other definitions, see Words tent by the trial judge.

and Phrases, First and Second Series, Artifice;

There were verdict and judgment for plainDeception.]

tiff in the sum of $750, which, upon appeal, 3. SEDUCTION Om 5—CONDITIONAL PROMISE OF was affirmed by the Court of Civil Appeals. MARRIAGE.

The case is before us upon petition for cerA general rule that promise of marriage con- tiorari. ditioned upon pregnancy resulting from intercourse will not amount to seduction is inapplica

Plaintiff was night operator for the teleble, where there are other influences amounting phone company at Lexington at the time, to 'deception, artifice, or promises inducing the and was until about July 1st, when she refemale to surrender.

turned to her father's home at Parsons. 4. SEDUCTION Om 24-QUESTION FOR JURY. Where there are influences other than a

Miss Gibson's statement of the commenceconditional marriage promise inducing the wo-ment of her relations with defendant is thus man's surrender, it is a question for the jury told by her: whether such surrender was out of sexual desire or curiosity, or induced by the man's acts, rep- "Well, he called in one night a short while resentations, or statements.

after I began to work, and he called in and 5. SEDUCTION - ELEMENTS-CHASTITY. asked for a number, and he asked who I was, Chastity of the female before and at the time and I asked for the number again, and

the other of the alleged seduction is a material element of operator asked who it was, and I wasn't acthe offense.

quainted there, and she told me it was Mr. 6. SEDUCTION Om 17 — ADMISSION

OF Evr. Finch, and he was all right and to go ahead

and talk to him, and in about a week I went DENCE.

Where in a seduction case defendant's evi- home, and he was on the train as conductor, and dence showed continuous relations between there was a little girl sitting by me, and he plaintiff and another man, extending before and kept picking at her on the way down, 'and then after the alleged seduction and the only ques- we came back on the same train, and after I tion was the nature of such relation, evidence got back that night he called in and I asked his of her conversation and familiarities with a per- number, and he said he knew who I was, and fect stranger during such period of time was ad- I asked who he was, and he told me, and he missible; such evidence being competent both asked me if I liked' Lexington, and 'asked if to corroborate testimony of the witness who I had found a fellow, and I told him No I claimed to have had such relations with plain- hadn't been here quite long enough to find a tiff and to explain correspondence between them, fellow, and he asked how he would suit, and i and having a direct and open relation to the told him I did not know, but if I could meet issue of plaintiff's chastity at the time of the him I reckon it would be all right. I didn't alleged seduction. The fact that such conduct have any other fellow, and he called me along occurred subsequent to the alleged seduction every night or two, talking about the same goes to its weight rather than to its admissi- conversation, asking about the work, and he bility.

wanted to meet me and come up there, and I

told him it was against the rules, and I didn't Certiorari to Court of Civil Appeals.

keep company in the office, and he said that I

had to sleep in the daytime, and he wanted to Suit by Alma Gibson against W. L. Finch. come up and meet me, and I never would give Judgment for plaintiff affirmed on appeal by up to him. They run on until December, and the Court of Civil Appeals and defendant pe ing a long time, and that he wanted to come

he called one night and said we had been talktitions for certiorari. Reversed and

up; that he didn't mean any harm, and it was manded for new trial.

30 or 40 minutes before I give up, and he said T. A. Lancaster and W. H. Lancaster, both in the daytime, and I finally gave in for him,

he just wanted to meet me and couldn't see me of Lexington, for plaintiff. W. F. Appleby, and he come just before 9 o'clock; and he came Jno. F. Hall, and L. B. Johnson, all of Lex- in and sit down and pulled off his hat and

rubbed his hand over his head and said, 'How ington, for defendant.

did I think I would like a bald-headed man like

him,' and I said for the acquaintance I had I LANSDEN, J. The suit was brought by liked him all right, and he taken some chewing Miss Gibson to recover damages of defend-gum and kept on asking me about the work, ant below for her alleged seduction. Plain- other fellow, and I told him no, and he taken

and if I still liked it, and if I had found any tiff below states that her seduction was ac- ) hold of my hand and started to kiss me, and

re

em For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

I told him turn me loose or I would knock him, that way, and if you would yield he would see down, and he said he didn't mean any harm, you wasn't cast aside and thrown away in the he just wanted to have some fun, and he said event anything happened? A. Yes, sir. Q. other girls do, and I said, I don't care, I didn't, You understood him to mean if you yielded and and he pulled me over and said he wouldn't mis- | anything happened, if you got pregnant, he treat me, and that he loved me; and that there wouldn't cast you off? A. No, not that night; wouldn't nothing happen, and if it did I would he said there wouldn't be any danger. Q. Danbe taken care of; that he would see I was taken ger of what? A. I don't know what he meant. care of, and not thrown aside, and he kept on Q. What did you understand him to mean? A. pleading, and I told him to turn me loose, and I understood it to be he would see I didn't get he told me to trust him and to look to him for in a family way. Q. And he said if you did protection and he would see I was taken care get in a family way he would see you were taken of, and he taken me and threw me across the care of and not thrown aside? A. Yes, sir. Q. table, and I yielded to him, but I didn't willing- That's all he did say before you yielded ? A. ly consent, and then I commenced to cry, and No, sir; he kept on them promises and telling · he said he wasn't going to hurt me, and that me he loved me. Q. Mighty short acquaintance nobody would know it, and he kept making his to be in love. A. I had been talking to him promises and pleading with me, and stayed on over the phone.

over the phone. Q. You got in love with him for 30 or 40 minutes after, and after I got over the phone? Ä. He just overpowered me reconciled he left and went home, and called some way, caused me to think so much of him. me up every two or three nights, and he come Q. The first time you saw him you fell in love every now and then, and I never did give my with him? A. (No answer.)" consent; he just promised that he would see that I was not thrown aside, and he would pro- The definition of seduction made by this tect me, and I trusted him and was looking to court has appeared to be understood at difhim for protection if anything happened, and after I found out my condition the last of June,

ferent times not to mean exactly the same I told him my condition, and he got mad and thing. In Reed v. Williams, 5 Sneed, 580, said I needn't be trying to pull the wool over 73 Am. Dec. 157, it was said that “it is his eyes and he wasn't going to marry me now, and I told him, after he promised me that, he enough that by any means whether by decephad to do what he said he would, and then he tion or importunity, the seduction is accomwent home and called me up and said he was plished.” This case further held that in an sorry he talked like he did and wanted me to forgive him, and I said he had to stick to his action by the father for the seduction of his promises. I didn't hear any more for a while, daughter it could not be shown in defense and he called in and asked how I was getting by cross-examination of the daughter that along, and would meet him on the street, and she had been guilty of acts of unchastity he would speak; and I quit work the last of July and went to my sister's, and the middle of with others. The case was expressly overAugust I was in town and met him on the ruled upon this point in Love v. Masoner, 6 street, and he asked me how I was getting along, Bax. 26, 32 Am. Rep. 522, and we may add and said, 'You are getting to be a little country that in other respects it was shaken as augirl,' and I said, 'Yes,' and I never heard any more from him until October, and Miss Crowder, thority by that opinion. So in the later case

. Nell Crowder, was at the depot, and he sent of Franklin v. McCorkle, 16 Lea, 609, 1 S. me word by her to meet him at the depot, and W. 250, 57 Am. Rep. 244, the court said that the next morning when the train pulled up to get water, we went on one side of the train, seduction is the act of overcoming the chasand he came out the door and helped us across tity of a female by artifice, flattery, or promon the other side, and Miss Hays went to get ises. her ticket, and him and I walked up the track

[1] In Bradshaw v. Jones, 103 Tenn. 331, together, and he asked me, he said he seen we were having a tent meeting going on, and asked 52 S. W. 1072, 76 Am. St. Rep. 655, the cases if we were all getting good; and he asked if were all reviewed, and the definition of seI got the work, and I said yes, and he said he duction was given in the following language: would see us again in a few minutes, and he

"Does the willingness arise out of the sexual came back and asked if I was coming to the fair, and told me to be sure and be there, and desire or curiosity of the female, so that she only we would all put on a show, and about that needs opportunity for the commission of the act, time the train pulled out, and that's the last I or is that willingness induced by some act, repheard of him until I heard he was gone.'

resentation, or statement of the man, in the ab

sence of which there would be no willingness upOn cross-examination she said that she on the part of the woman? In the latter case

there is seduction; in the former there is not.” gave defendant permission to come to see her in her bedroom after he had insisted The foregoing is the last definition of the for 30 or 40 minutes. She admitted that she offense given by this court, and we think it · had no previous personal acquaintance with is a correct one, and should be applied to defendant; that he had never called upon the facts of this case. her, and they had never been introduced, or The facts of that case were unusual in had any conversation with each other except that a married man seduced a single woman, over the telephone. She says that he ac- but the court stressed the relationship of the complished her seduction in 25 or 30 minutes defendant with the plaintiff, and especially after he entered the room; that there was a the fact that he spoke almost as one having folding bed in the telephone office, where she authority over her, she being a member of worked, between the keyboard and the wall, his household;

his household; and, while the court does but she had not made it down when defend- mention his representation to her that he ant came, and did not make it down for the was impotent, and states that she may have occasion because she did not have time. She entertained such a belief, and that her was then asked the following questions:

“fears” were lulled and quieted, still a read“And what he said to you was substantially ing of the entire case shows that the deci

she yielded her virtue because her fears of ,lated to induce a pure woman to yield her chas. the results to follow. were lulled by defend-tity? In our judgment, this question admits of

but one answer. Such a promise has no tenant's representations. It was shown that dency to overcome the natural sentiment of virshe never did consent to the connection, and tue and purity. The woman who yields upon in a short time afterwards, related to de- such a promise is in no better position than as fendant's wife all that had occurred, thus in- No wrong is done her if she is put in the class

though no promise whatever had been made. dicating that her mind had never accepted with those who commit the act to gratify their the relations between herself and defendant. desire. She was willing to lose her virtue if [2] At the threshold of this case, the ques. pregnancy does not result from the illicit inter:

some provision was made to conceal its loss. If tion is presented for our determination of course, her conduct is, in every respect, as' culwhether a female who surrenders her virtue pable as that of her companion. If pregnancy upon the representations by the male that he does result, his conduct becomes more culpable will shield her from the consequences of the than hers when, and not until, he refuses to

marry her. The commission of the offense canact has been seduced as a matter of law? It not depend upon the happening of a subsequent is difficult to see how any representation event.'*” which a man could make upon this subject

[3] The annotator's note to Hamilton y. would deceive or mislead a virtuous woman United States, supra, states that where a into submitting to his desires. Every one promise of marriage is an essential element knows that the natural result of such an act of seduction, the rule is almost universal is to beget a state of pregnancy upon the that a promise of marriage conditioned upon body of the female, and the representation of the man to the effect that pregnancy will will not amount to seduction, and cites many

pregnancy resulting from the intercourse not result from a natural connection of the cases in support. The cases to which we sexes would be a claim upon his part which have had access are in harmony, and we do every one must know he cannot fulfill; and if she claims that it overcomes her will, and not know of anything to the contrary in this

state. is the inducing cause for her having illegal

[4] What we have said is where the condiconnection with him, it must be deemed to tional promise of marriage is the sole inducbe a pretext for the indulgence of her sex-ing cause to the plaintiff's surrender of her ual desires rather than artifice, deception, chastity. Of course where there are other or promises within the meaning of the law. influences which amount to deception, arti

In the District of Columbia the common fice, or promises and they are the inducing law does not prevail upon this subject, and motive to the plaintiff for surrendering her the Congress passed a statute applicable to virtue the rule stated would not apply. In the District which provides:

such an event it is a question for the jury "If any person shall seduce and carnally know any female of previous chaste character, to say if the plaintiff surrendered her virbetween the ages of 16 and 21 years, out of wed- tue out of her sexual desire or curiosity, or lock, such a seduction and carnal knowledge whether her willingness to indulge in the shall be deemed a misdemeanor." Act Cong. I intercourse was induced by such acts, repreMarch 3, 1901, c. 854, 31 Stat. 1332.

sentations, or statements of the man. We The case of Hamilton v. United States do hold, however, that as a matter of law, came before the Court of Appeals of the Dis- if the female surrenders her virtue upon a trict upon the question of whether a promise representation of the man which all know is of marriage "if anything happened” in order contrary to the laws of nature, such a repto secure sexual intercourse with a female resentation cannot be deemed to be the inof previous chaste character was seduction. ducing cause for her willingness to indulge in The court held that it was not, saying:

the act, and her indulgence will be ascribed are a bargain of this sort and one where a virgin de to sexual desire, or curiosity, or previous liberately parts with her virtue for money con- sexual experience, rather than to artifice, sideration. The parties were practically of deception or promises. equal age, both of the age of discretion, and it [5] It should be borne in mind that the does not appear that they were lovers. Defendant was only a casual visitor to the house chastity of the female, before and at the where the prosecuting witness resided. There is time of the alleged seduction, is a material no evidence of his having practiced any art or element of the offense. Love v. Masoner, suwile, deception or persuasion, to induce the prosecuting witness to yield to his desires." Hence pra; Bradshaw v. Jones, supra; Franklin none of the elements enter into the transaction v. McCorkle. upon which the crime of seduction may be pred- Plaintiff states that her relations with deicated. Where, as in this instance, a woman fendant extended from December, 1914, to traffics away her chastity for no other consideration than a mere contingent promise of marriage about July, 1915. She also claimed that she procured by her solicitation as an indemnity had never previously had sexual intercourse against possible pregnancy, it is not seduction with any other man. The defendant denied under any statute or rule of law with which we are familiar.", Hamilton v. United States, that he had ever had sexual intercourse with 51 L. R. A. (N. S.) 809.

plaintiff, and averred in addition that plainIn People v. Smith, 132 Mich. 58, 92 N. W. tiff was an unchaste woman prior to and at 776, the following language occurred:

the time she alleges that defendant seduced “ 'Is a promise to marry, conditioned upon

her. He offered the testimony of witness Illicit intercourse resulting in pregnancy, calcu- Tucker to support this contention. Tucker

states that he had had sexual connection the trial judge, and the Court of Appeals with plaintiff prior to the time of the alleg- affirmed his action. ed seduction and often afterwards. He in- [6] We think this was error. It is highly troduced certain letters which he claimed improbable that a woman who would have corroborated his statement. Miss Gibson the conversation and submit to the familisaid that she had had no such relation witharities of a perfect stranger as claimed by Tucker, and that the letters, when properly Sellers in June or July was a pure and virtuunderstood, do not bear any such interpreta- ous person in December, especially when the tion. However, she does admit the author-correspondence with Tucker, both previous ship of the letters, and they show that dur- and subsequent to December, is taken into ing the time she says that defendant was view. The evidence was competent both for calling on her two or three times a week and the purpose of corroborating Tucker's testiindulging in sexual intercourse with her, she mony and of explaining the correspondence. was writing to Tucker in the most endearing The fact that the act testified to by Sellers terms, professing the most boundless love was subsequent to the alleged seduction goes for him, and in one letter, written after her to its weight rather than its admissibility. claimed relationship with defendant, she in- It had a direct and open relation to the isvited him to meet her at a designated place, sue of plaintiff's chastity at the time of the saying that they could "arrange it," and she alleged seduction. This is true because all of would try to show him a good time. Letters the evidence shows that plaintiff's relations passed between them after this one. All of with Tucker were continuous up to tbe time hers were written in terms of the greatest fixed by Sellers. The only question was the endearment. The defendant offered to prove nature of her relations with him. This by one Sellers that he approached plaintiff would doubtless not be true if there had been upon the subject of sexual indulgence the only one act claimed, either between her and first time he ever saw her, and without any defendant or between her and Tucker. The previous introduction. He would have stat following cases so hold: State v. Holter, 32

, ed that she readily agreed to his propositions. D. 43, 142 N. W. 657, 46 L. R. A. (N. S.) and permitted him to take unwomanly liber- 376, Ann. Cas. 1916A, 193; State v. Brown, ties with her. This was in June or July aft-86 Iowa, 121, 53 N. W. 92; State v. Baldoser plaintiff became pregnant, and while she er, 88 Iowa, 55, 55 N. W. 97; Stinehouse v. was still corresponding with Tucker, and, as State, 47 Ind. 17. she says, maintaining her relationship with For the errors indicated, the case will be defendant. This evidence was excluded by reversed and remanded for a new trial.

UTE.

(83 Tex. Cr: R. 358)

order of the trial judge, writ of habeas corpus Ex parte ALDERETE. (No. 4978.)

should have been granted. (Court of Criminal Appeals of Texas. April

9. HABEAS CORPUS Omw 69-ORDER RELEASING 10, 1918. On Motion for Rehearing,

ON BAIL ENTRY OF JUDGMENT ON MIN

UTES.
May 8, 1918.)

The order of the Court of Criminal Ap1. HABEAS CORPUS CW44.— JURISDICTION TO peals releasing relator on bail pending a deciISSUE-COURT OF CRIMINAL APPEALS-STAT- sion whether writ of habeas corpus would be

issued on his application or not did not suspend Under Const. art. 5, § 5, and Code Cr. the trial court's power to have written on its Proc. 1911, arts. 69, 160, 174, 175, 181-183, minutes the judgment it had rendered. the Court of Criminal Appeals has jurisdiction 10. HABEAS CORPUS 117 (2) - ORDER DIsto issue writ of habeas corpus in any case where CHARGING FROM CUSTODY-IMPEDIMENT TO a person is illegally restrained of his liberty,

ENFORCEMENT OF JUDGMENT. and, under Const. art. 5, § 3, and Rev. St.

Where the Court of Criminal Appeals de1911, art. 1529, the Supreme Court has concur

termined that the facts authorized rendition of rent jurisdiction where the restraint grows out the judgment of the district court under which of a civil case.

relator was held, it having been entered in the 2. HABEAS CORPUS 44—COURT OF CRIMI- record, and relator's discharge being on On

the NAL APPEALS-EXERCISE OF JURISDICTION. ground that when the order of the Court of

Generally speaking, the Court of Criminal Criminal Appeals was made there was no judgAppeals will not issue original writs of habeas ment entered or process issued authorizing his corpus in cases where other courts have jurisdic- detention, its order discharging him from custion to do so.

tody is no impediment to the subsequent en3. HABEAS CORPUS ww44-CONTEMPT IN CIV- forcement of the judgment of the district court

Om
IL CASE-COURT OF CRIMINAL APPEALS.

by proper process. In a contempt proceeding growing out of

Original application for writ of habeas an alleged failure to observe an order in a civil cause, the Court of Criminal Appeals will re- corpus on behalf of Ike Alderete. Applicafuse to grant writ of habeas corpus, relegating tion granted, and relator ordered discharged. the party to his remedy in the Supreme Court. 4. HABEAS CORPUSO 14-RESTRAINT IN CIV

Hudspeth & Harper and M. W. Stanton, IL CAUSE-DECISION BY COURT OF CRIMINAL all of El Paso, and C. C. McDonald, of AusAPPEALS.

tin, for appellant. E. B. Hendricks, Asst. Where it is apparent from

apparent from the record Atty. Gen., for the State. brought to the Court of Criminal Appeals that the order or process under which relator seeking habeas corpus was held was in a civil cause,

MORROW, J. This is an original applicaso that his application for writ should have tion for writ of habeas corpus seeking relief been presented to the Supreme Court, the writ against judgment of the district court in El that, when the application was presented, it did Paso county declaring relator in contempt of not contain a copy of the order or process un

court. der which relator was held, but stated that it The state suggests the want of jurisdiction could not be obtained, in compliance with Code of this court, citing Ex parte Zuccaro, 72 Cr. Proc. 1911, art. 174, it is the duty of the Court of Criminal Appeals to decide the ques- Tex. Cr. R. 214, 162 S. W. 844, and Ex parte tion,

Mussett, 72 Tex. Cr. R. 487, 162 S. W. 846. 5. INTOXICATING LIQUORS Cw278 — SALE OF One of these cases, Ex parte Zuccaro, supra, LIQUOR'S—AVOIDANCE BY REMOVAL.

indicates that the majority of the court renInjunction against an incorporated club and its officer from using the premises of the club, dering the opinion were of opinion that by or any part, for selling spirituous, vinous, or reason of article 1529 of the Revised Civil malt liquors, etc., related to the business or oc- Statutes this court would be without juriscupation in which the club and its officer were diction to grant a writ of habeas corpus to engaged and could not be avoided by removal to another town in the same county.

one restrained of his liberty by virtue of an 6. CONTEMPT em 64 – ORDER AND COMMIT- order entered in a civil case. The Mussett MENT.

Case follows the same line of reasoning, To hold one adjudged in contempt in cus- stating: tody, a valid and entered order or judgment, and

"To our mind, taking into consideration our a commitment issued thereon, are necessary, Constitution and the amendment thereto, the and in the absence of a commitment any re-act of the Legislature in pursuance of this straint is illegal.

amendment to the Constitution quoted above, it 7. HABEAS CORPUS Onw 41 – CORRECTION OF was the clear intent and purpose that in this VERBAL ORDER-JURISDICTION.

character of case the application for a writ Where one is held in contempt proceedings of habeas corpus should be addressed to the Suon a verbal order, and obtains writ of habeas preme Court, and not to this court.” corpus from the Court of Criminal Appeals,

In the State ex rel. McNamara v. Clark, the court making the order is without power to correct it, or to oust the jurisdiction of the 79 Tex. Cr. R. 559, 187 S. W. 760, the maCourt of Criminal Appeals, which attaches by jority of the court rendering the opinion held issuance of the writ, by causing a commitment it is vested with the jurisdiction to give reto be issued.

lief against an injunction ordered issued On Motion for Rehearing.

by a district court. This decision, it is 8. HABEAS CORPUS On 26-HOLDING UNDER claimed in the dissenting opinion, is in conVERBAL ORDER.

flict with the cases of Zuccaro and Mussett, Where, when application for habeas corpus

supra. was filed, with the Court of Criminal Appeals. the sheriff had no commitment for relator in

[1] Whatever may be the scope or effect of his hands, and was holding him under a verball the decisions mentioned, the writer is of the

On For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes