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If corroborated as to the facts of the taking, receiving and employing, etc., for the purpose of prostitution, and as to the fact of her being within the age prescribed by the statute, the conviction will stand. People v. Brandt, 14 State Rep. 419; affirmed, 110 N. Y. 647.
In People v. Cullen, 23 State Rep. 559; 5 N. Y. Supp. 886, in addition to the testimony of the complainant, a child, a physician testified that an examination of the child's person showed that an assault might have been committed. Held, proper to submit defendant's guilt or innocence to the jury. See, also, People v. Stott, 5 N. Y. Cr. Rep. 61.
The case of rape is an exception to the rule that the evidence of a witness cannot be corroborated or confirmed by proof that such witness stated the facts testified on the trial on some previous occasion when not under oath. People v. O'Sullivan, 104 N. Y. 481.
Evidence of the statements of the husband of the prosecutrix made in her presence on the day of the offense is admissible in corroboration of her testimony. Conkey v. People, 1 Abb. Dec. 418. See Woodin v. People, 1 Park. 464.
Whether the prosecutrix has been corroborated or not is a question for the jury. Crandall v. People, 2 Lans. 309.
$ 284. Seduction under promise of marriage.- 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.
“Seduction as a Crime,” 3 Crim. Law Mag. 331; 87 Am. Dec. 405–11; 8 Am. St. Rep. 870; 31 Cent. L. J. 44.
Webster defines seduction as “the act or crime of persuading a female, by flattery or deception, to surrender her chastity.” Seduction has been defined
“the use of some influence, promise, art or other means on the part of a man by which he induces a woman to surrender her chastity and virtue to his em. braces.” Anderson Law Dict. 932; Croghan v. State, 22 Wis. 444; Patterson v. Hayden, 17 Ore. 238; 11 Am. St. Rep. 822; in this case the court say: “ Courts have been more inclined to follow Webster's definition than those given by the legal lexicographers."
A woman cannot be said to be "seduced” who at the time of the alleged seduction was leading a lewd and lascivious life. Patterson v. Hayden, 17 Ore. 238; 11 Am. St. Rep. 822.
An illicit intercourse of long continuance not seduction. Safford v. People, 1 Park. 474.
If the prosecutrix have knowledge that the defendant was a married man at the time of the alleged seduction, it is a good defense. People v. Alger, 1 Park. 333; Callahan v. State, 63 Ind. 198; 30 Am. Rep. 211.
If the defendant, having arrived at the age of puberty, although under age, effect his purpose by promising to marry the girl, it is a sufficient and valid promise under the statute, and a promise on her part is implied if she yields, and she may testify that defendant's promise induced her to consent. Kenyon v. People, 26 N. Y. 203; 84 Am. Dec. 177; People v. Kane, 14 Abb. Pr. 15.
See, also, People v. Hustis, 32 Hun, 58; 2 N. Y. Cr. Rep. 448; People v. De Fore, 64 Mich. 693; 8 Am. St. Rep. 868.
A statute made it a felony for any person under promise of marriage to have illicit intercourse with a female infant of good repute for chastity. Held, that the promise need not be a valid one in fact if the infant understood it to be valid; and the indictment need not allege that the defendant was unmarried, at the time. Callahan v. State, 63 Ind. 198; 30 Am. Rep. 211.
By "previous chaste character” in the statute is meant actual personal virtue and not reputation, and the fact that the female is in fact unchaste, can only be shown by proof of specific acts of lewdness on her part. Kenyon v. People, 26 N. Y. 203; 84 Am. Dec. 177.
A statute provided for the punishing of the seduction of any unmarried woman “of previously chaste character.” Hed, that “character” referred to moral qualities and not to reputation, and evidence of reputation was not admissible upon the issue of character, but only to impeach or corroborate testimony regarding particular acts of unchastity. State v. Prizer, 49 Iowa, 531; 31 Am. Rep. 155.
On a prosecution for seduction oi a woman of “good repute for chastity," the state must affirmatively prove such reputation. Zabriskie v. State, 43 N. J. L. 610; 39 Am. Rep. 610; Oliver v. Com., 101 Penn. St. 215; 47 Am. Rep. 704; Kaufman v. People, 11 Hun, 86; People v. Roderigas, 49 Cal. 9.
The prosecution must prove the actual personal chastity of the complainant, although the statute is silent as to character or repute; Polk v. State, 40 Ark. 482; 48 Am. Rep. 17.
And it must be established beyond a reasonable doubt. People v. Squires, 49 Mich. 487.
In the following cases it was held, that previous chaste character was to be presumed until the contrary appears. People v. Kane, 14 Abb. 16; Crozier v. People, 1 Park. 453; Wood v. State, 48 Ga. 192; State v. Higdom, 32 Iowa, 262; Conkey v. People, 5 Park. 431.
An offer to prove by general reputation that the character of the prosecutrix was bad, is properly excluded. Kenyon v. People, 26 N. Y. 203; 84 Am. Dec. 177; State v. Prizer, 49 Iowa, 531; 31 Am. Rep. 155; Crozier v. People, 1 Park. 453; People v. McArdle, 5 id. 180; Boyce v. People, 55 N. Y. 644; Carpenter v. People, 8 Barb. 603; Kaufman v. People, 11 Hun, 82.
If the indictment is defective in not giving the correct surname of the female, the court on trial has power to cure the defect by directing an amendment. People v. Johnson, 104 N. Y. 213; 5 N. Y. Cr. Rep. 218; affirming 4 id. 591.
For form of indictment, see People v. Kenyon, 5 Park. 254; affirmed, 26 N. Y. 203.
For the purpose of affecting his credibility, defendant may be asked on crossexamination if he has had sexual intercourse with a person other than the prosecutrix, and in no way connected with the action. People v. Eckert, 2 N. Y. Cr. Rep. 470.
In People v. Eckert, supra, defendant at the time of the alleged seduction was sixteen years of age, and the prosecutrix about six years older. She had known defendant from boyhood, and the illicit intercourse was deliberately permitted until just before the child was born. The conduct of the prosecutrix with other men showed great laxity of moral obligation. Held, that as the evidence was strongly against the probability of the alleged promise to marry, and against the purity of character of the prosecutrix, a new trial should be granted.
Upon a trial for seduction, the court should not instruct the jury upon the law of rape. Reynolds v. People, 41 How, Pr. 179.
$ 285. Subsequent marriage. — 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.
$ 286. No conviction on certain testimony. – No convic. tion can be had for the offense specified in section two hundred and eighty-four, upon the testimony of the female seduced, unsupported by other evidence.
In People v. Kearney, 110 N. Y. 188; reversing 47 Hun, 129, the testimony of the prosecutrix was to the effect that the crime was committed in July, and that defendant thereafter had frequent intercourse with her until December. The prosecution was permitted to show, under objection and exception, that the prosecutrix had a child in August of the next year; held, error, that the evidence did not tend to corroborate the testimony of the female as to the commission of the crime charged, as it did not tend to show illicit intercourse thirteen months before the birth of the child.
The testimony of the female seduced need only to be supported as to the promise of marriage, and the carnal connection. Armstrong v. People, 70 N. Y. 38; Kenyon v. People, 26 id. 203; People v. Hine, 8 N. Y. Leg. Obs. 139; Rice v. Com., 100 Penn. St. 28; People v. Kearney, 110 N. Y. 188.
The corroboration may be by circumstantial evidence. Boyce v. People, 55 N. Y. 644; State v. Brinkhaus, 7 Crim. Law Mag. 343; State v. Ilill, 4 S. W. Rep. 121.
Evidence that defendant had opportunities to employ arts, deceptions and false promises is sufficient, as corroborative evidence, to connect him with the offense charged. State v. Araah, 55 Iowa, 250.
Whether the prosecutrix has been sufficiently corroborated is a question for the jury. Crandall v. People, 2 Lans. 309.
Evidence of previous acts of lewdness and unchastity by the complainant with other men is admissible. State v. Patterson, 88 Mo. 88; 57 Am. Rep. 374; State v. Brassfield, 81 Mo. 151; 51 Am. Rep. 234.
But not of subsequent acts. Boyce v. People, 55 N. Y. 644; State v. Dietrick, 51 Iowa, 467. Contra, State v. Brassfield, 81 Mo. 151; 51 Am. Rep. 234.
Where it is necessary to take the testimony of the prosecutrix through an interpreter, it is not error to allow the state to ask her, on her direct examination, if she had the intercourse with defendant after the promise of marriage, and if without the promise to marry she would have allowed the intercourse. People v. Jensen, 33 N. W. Rep. (Mich.) 811.
In Cook v. People, 2 Th. & C. 404, the prosecutrix was asked, “And would you have consented to it (the connection), in the absence of a promise ?” Held, inadmissible as calling for a merely speculative answer.
But the female may testify to the fact that she consented to the intercourse because of the promise. State v. Brinkhaus, 7 Crim. Law Mag. 343.
Evidence that defendant, subsequent to the seduction, had refused to marry the prosecutrix is inadmissible. Cook v. People, 2 Th. & C. 404.
The existence of pregnancy is not essential to a conviction under the statute. Id.
If the prosecutrix have knowledge that defendant is a married man at the time of the alleged seduction, it is a good defense. People v. Alger, 1 Park. 333.
ABANDONMENT AND OTHER ACTS OF ORUELTY TO CHILDREN.
SECTION 287. Abandonment of child under six years.
288. Unlawfully omitting to provide for child.
$ 287. Abandonment of child under six years.- A parent, or other person having the care or custody, for nurture or education, of a child under the age of six years, who deserts the child in any place, with intent wholly to abandon it, is punishable by imprisonment in a state prison, for not more than seven years, or in a county jail for not more than one year.
See 1 Bish. Crim. Law (7th ed.), $ 557; 1 Whart. Crim. Law (8th ed.). $ 331.
This statute is designed to protect the public. People v. Naehr, 30 Hun, 461.
Abandonment is not a continuous act, but the offense is complete when the separation takes place. Bayne v. People, 14 Hun, 181.
$ 288. Unlawfully omitting to provide for child.-A person who willfully omits, without lawful excuse, to perform a duty by law imposed upon him to furnish food, clothing, shelter or medical attendance to a minor, or to make such payment toward its maintenance as may have been required by the order of a court or magistrate when snch minor has been committed to an institution, is guilty of a misdemeanor.
Any person other than a superintendent of the poor, or a superintendent of alms-houses, or an institution duly incorporated for the purpose, who receives, boards or keeps any nursing children, or any children under the age of twelve years not his relatives, apprentices, pupils or wards, without legal commitment, or without first having obtained a license in writing so to do from a member of the state board of charities, or from the mayor, or board of health of the city or town wherein such children are received, boarded or kept, or who violates the provisions of such license, is guilty of a misdemeanor. Such license mnst specify the name and residence of the person so undertaking the care of such children, and the place and number of children thereby allowed to be received, boarded and kept therein, and shall be revocable at will by the authority granting it. Such person shall keep a register wherein he shall enter the names and ages of all such children, and the names and residences of their parents, as far as known, the time of the reception and discharge of such children, and the reasons therefor, and if he neglects or omits so to do, he is guilty of a misdemeanor. It shall be lawful for the officers of
incorporated society for the prevention of cruelty to children, at all reasonable times to enter and inspect the premises wherein such children are so boarded, received or kept, and also such register and the children.
As to the duty of parents to provide for the maintenance of their children, see Cromwell v. Benjamin, 41 Barb. 558; Kelly v. Daris, 49 N. H. 176; 6 Am. Rep. 499.
After the death of the father the duty devolves on the mother. Furman v. Van Size, 56 N. Y. 435; Dedham v. Natick, 16 Mass. 140.
One who, with no natural or legal duty, voluntarily seeks and assumes the care and custody of a child is amenable to the statute if he fails to perform the duty required, to the injury of the child. People v. Cowley, 83 N. Y. 464; 38 Am. Rep. 464.
$ 289. Endangering life or health of child.- A person who, having the care or custody of a minor, either
1. Willfully causes or permits the life or limb of any child actually or apparently under the age of sixteen years to be endangered, or its health to be injured, or its morals to become depraved; or,
2. Willfully causes or permits the minor to be placed in such a situation, or to engage in such an occupation, that its life or limb