People v. Tibbs

GRAY, C.

The defendant was convicted of the crime defined in section 268 of the Penal Code—seduction under promise of marriage. He appeals from the judgment and from the order denying him a new trial.

The prosecutrix testified in substance that she was seduced by defendant and induced to have sexual intercourse with him under a promise of marriage on the night of November 27, 1900, while returning with him to her home from a dance at a neighbor’s house. She also testified that she became engaged to marry the defendant in October or November, 1899. As to this engagement she was corroborated by the , testimony of her mother. As the result of this seduction the evidence shows that a child was born to the prosecutrix on the twenty-first day of August, 1901. As a witness in his own behalf, the defendant stoutly denied not only the sexual intercourse but also the promise to marry.

1. The first contention of the appellant is, that the court erred in permitting the prosecutrix and her mother to testify that in the spring of 1901 she made preparations for her marriage in the way of sewing and making clothes, as young women usually do in preparing for their wedding. We think evidence of these preparations, occurring as they did some five or six months after the alleged .seduction, and not shown to have been brought to the knowledge of the defendant, should have been excluded. They constituted no part of the

res gestee,

and come clearly within the rule excluding acts and declarations merely self-serving and in the nature of hearsay.

[102]

(Cooper

v.

State,

90 Ala. 641;

State

v.

Lenihan,

88 Iowa, 670;

State v. Buxton,

89 Iowa, 573.)

To sustain the action of the court in admitting this evidence, the respondent cites Underhill on Criminal Evidence, secs. 388, 390, where it is said that “the fact that the woman had made preparations for the celebration of the marriage is relevant. ” It is said also in the latter section that consultations with the woman’s parents and preparations for marriage” is proper evidence to corroborate the prosecutrix’s testimony. This may be proper evidence, we think, where it is shown that the defendant had had some knowledge of or connection with the consultations or preparations; but if the text-writer intends to hold that such-consultations of the woman with her parents without the knowledge of defendant is evidence of the marriage engagement, such holding is in conflict with the language of this court in