People v. Kehoe
Before: Henshaw
Synopsis
Criminal Law—Seduction under Promise of Marriage—Minority of Parties.—In a prosecution under section 268 of the Penal Code, for the crime of seducing an unmarried female under promise of future marriage, the fact that the defendant, at the time of the promise, was under the age of lawful consent to marriage, thus rendering his promise of.marriage not legal and binding, does not withdraw the offense from the purview of that section. The offense may be committed by an infant upon an infant, “if both have reached the age of puberty.”
Id.—Legality of Promise not Requisite—Design of Law—Confidence in Moral Obligation of Promise.—The design of the law is to protect female chastity; and excepting where the promise of marriage is known by the promisee to be base and meretricious, the promise need not be such a legal promise as would support an action for its breach. Although the female seduced may have known that the seducer was unable at that time to.contract a lawful marriage, she had a right to put confidence in his intention to fulfill the moral obligation of the promise when able to do so.
Id.—Evidence—Previous Chaste Character of Prosecutrix—Subsequent Unchaste Conduct.—The inquiry in determining the chaste character of the defendant is confined to her previous chaste character, and evidence of her subsequent sexual intercourse with other men is properly excluded.
Id.—Meaning of Chastity — Prior Familiarities.—Chastity, in the case of an unmarried female, means simply that she is virgo intacta; and whatever prior familiarities, liberties, or even indecencies, may have been permitted by her, so long as she did not surrender her person until seduced to do so by the defendant under promise of marriage, she cannot be said to have been unchaste, or not to have been “an unmarried female of previous chaste character,” within the meaning of the statute.
Id.—Instructions—Assumption of Facts.—Instructions are not chargeable with an improper assumption of facts, where it appears that, so far as assuming facts, they presented merely an abstract consideration of the crime and its elements, and were not directed to the particular circumstances of the case at bar, and that the court, when dealing with the evidence in the case, was careful to leave all questions of fact for the determination of the jury.
HENSHAW, J. The defendant was convicted of the crime of seduction under promise of marriage, and appeals from the judgment and from an order denying him a new trial. The sections of the Penal Code bearing upon the offense are the following:
“Sec. 268. Every person who, under a 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.”
“Sec. 269. Intermarriage of the parties subsequent to the [226]commission of the offense is a bar to a prosecution for a violation of the last section, provided such marriage take place prior to the finding of an indictment or the filing of an information charging such offense.”
Defendant and the girl with whose seduction he was charged were both school children, and about the same age. At the time of the seduction, and of the first act of sexual intercourse, each was about sixteen years old. The girl testified that she submitted to his embraces under his promise to marry her “when he was old enough” and “when they were old enough.” She says: “There was no time ever set when we were to be married, only after he became of age and became old enough to be married we would be. I didn’t know whether we would be married in one year or two years or three years or five years. I knew when he would become of age.” The girl’s evidence, if believed by the jury, was sufficient to support the conviction. It proved the promise and her reliance upon it in submitting herself to the defendant’s desires.
But it is very earnestly pressed upon the consideration of this court that the defendant, under the facts, does not come within the purview of this statute. It is argued that a boy of sixteen is incapable under our law of consenting to and consummating marriage; that only an unmarried male of eighteen years or upward can do so (Civ. Code, sec. 56); that, even when the male has reached the age of eighteen years, he is still under disability, and may not obtain the requisite marriage license without the consent of his parent or guardian, and that if such consent should be withheld—and in this case it was withheld— he could not legally marry until he attained the age of twenty-one years (Civ. Code, sec. 69); that, as a boy of sixteen is incapable of consenting to and consummating marriage, so his promise to marry is invalid, and could not be made the foundation of a civil action, much less of a criminal; that section 269 of the Penal Code makes provision for barring a criminal prosecution under the preceding section of the code by intermarriage of the parties; and that, if section 268 of the Penal Code be held to apply to a case such as this, it must result in the hardship, if not in the absurdity of the law, that an adult offender, who has arrived at years of discretion, whose judgment
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