People v. Jensen
Before: Hart
Synopsis
Criminal Law—Seduction Under Promise of Marriage—Unqualified Promise Essential—Promise Contingent on Pregnancy Insufficient.—A seduction under an unqualified promise of marriage is essential to constitute the crime punishable under section 268 of the Penal Code; and a seduction accomplished under a contingent promise that the seducer will marry the female seduced only in case she becomes pregnant, as the result of their immoral relations, does not constitute a crime within the meaning of that section.
Id.—Direct Testimony of Prosecutrix—Unqualified Promise of Marriage Before Seduction — Confusing Cross-examination— Question for Jury—Support of Verdict.—Where the prosecuting witness both in her direct and re-examination testified to a seduction accomplished by the defendant under an unqualified promise of marriage, precedent thereto, but, being confused by an adroit cross-examination, was led to say that, in addition to the previous promise of marriage, the defendant assured her that if she became pregnant he would, by executing his promise, protect her, and the court gave proper instructions to the jury, under any phase of her testimony, it was a question for the jury to determine whether the probative value of her direct testimony was overcome by her cross-examination; and their verdict of conviction is indubitable evidence that it was not; and her direct evidence, if believed, was sufficient to support the verdict.
Id.—Opinion of Court Denying New Trial.—Where the court, after properly recognizing the rule of law relied upon by the defendant, denied his motion for a new trial, it is plainly apparent that the judge, having equal opportunity with the jury to observe the prosecutrix as a witness, was not of the opinion that her cross-examination should be interpreted as contradicting her direct testimony.
HART, J.
The defendant was convicted of the crime of “seduction under promise of marriage,” and prosecutes this appeal from the order denying his motion for a new trial.
The only point urged against the validity of the order appealed from is that the evidence does not disclose that the defendant committed the crime denounced by section 268 of the Penal Code, upon which the information upon which he was tried and convicted is founded. Said section reads as follows: “Every person who, under promise of marriage, seduces and has sexual intercourse with an unmarried female of previous chaste character, is punishable by imprisonment in the state prison for not more than five years, or by a fine of not more than five thousand dollars, or by both such fine and imprisonment.”
By the terms of the succeeding section a prosecution of an offender under section 268 may be barred by the intermar-' riage of the parties prior to the finding of an indictment or the filing of an information charging such offense.
The contention is that the testimony of the prosecutrix discloses that the defendant promised to marry the plaintiff, if she would consent to and have sexual relations with him, only in the event that she became pregnant as a result of such relations, and that, if this be true, the promise so proved is not the promise essential to constitute the crime denounced by section 268 of the Penal Code.
In support of this proposition, the case of
State
v.
Adams, 25
Or. 172, [42 Am. St. Rep. 790, 35 Pac. 36, 22 L. R. A. 840], is cited. There it is held that seduction accomplished under a promise that the seducer will marry the female only in case she becomes
enceinte
as a result of their immoral relations is not a crime within the meaning of a statute similar to ours in language and terms. The reasoning upon which the conclusion in that case is reached appears to be impregnable. But we think there is a wide difference, as to the facts, be
[222]
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