People v. Vitro

FINCH, P. J.

The defendant appeals from a judgment of conviction of the crime of seduction, under promise of marriage, of an unmarried female of previous chaste character and from the order denying his motion for a new trial.

[202]

It is claimed that the evidence does not show that the prosecutrix was of previous chaste character. The prosecutrix gave her testimony through an interpreter and counsel and the interpreter at times fell into the had practice of putting questions and answers in the third person. The prosecutrix testified: “I had sexual intercourse with the defendant, ’ ’ stating the time and place and that it was her first act of sexual intercourse with him. Thereafter the following testimony was given by her: “Q. Why did she permit the defendant to have sexual intercourse with her during January, 1919? Mr. Maddux: ’18. Q. 1918. A. Promised to marry her. Q. Had you ever had intercourse with any other person 'before that time? A. No, sir.” It is logically argued that the word “intercourse” does not necessarily mean “sexual, intercourse,” but, following as it does immediately after the use of the term “sexual intercourse” in the preceding question, there can be no doubt that the witness understood that “sexual intercourse” was meant.

[1]

The court permitted the prosecution to prove, over the objection of the defendant, that he indulged in frequent acts of sexual intercourse with the prosecutrix after the commission of the act charged and up to February, 1920, and that she gave birth to a child October 8, 1920. It has so often been held that such evidence is admissible in the trial of' a defendant on a charge of illicit sexual intercourse that citation of authorities would be superfluous.

The defendant requested the court to give the following instruction: “Illicit intercourse permitted by a woman as a mere barter and -trade for a promise of marriage is not seduction. There must be the exercise of certain influence on her affections by reason of the promise. (If in order to obtain an agreement from the defendant, the prosecuting witness permitted him to have sexual intercourse with her, then there is no seduction and the defendant should be acquitted.) ” The court modified the proposed instruction by striking out the part inclosed in parentheses and gave it as so modified. The part stricken out states no rule of law not contained in the part given and, hence, the modification was not error.