¶1
The opinion of the Court was delivered by
Mr. Justice Beease.
¶2
The appellant was convicted in the Court of General Sessions of Greenville County for the crime of seduction under the promise of marriage. The appeal here raises the identical questions which were, raised by the appellant on his motion for a new trial. The order of the trial Judge, Hon. J. Henry Johnson, refusing the motion for a new trial, correctly disposes of all the questions raised on that motion, and, in our opinion, it also decides all the questions raised by the exceptions before this Court. The order of Judge Johnson, which will be reported, is adopted as the opinion of this Court.
¶3
The judgment of this Court is that the appeal be, and the same is hereby, dismissed.
Mr. ChiEE Justice Watts and Messrs. Justices Sta-beer and Carter concur.
Download
Copy
Embed on your site
iframe Markdown Preview card Button Hover to preview · click to copy the code
Case posture Posture Before JOHNSON, J., Greenville, March, 1926. Appeal dismissed.H.M. Heavener, alias H.M. Marshall, was convicted of seduction, and he appeals.
The order of J. Henry Johnson, trial Judge, refusing defendant's motion for a new trial, was as follows:
After trial and conviction upon an indictment charging the statutory crime of seduction, defendant, through his attorneys, and within due time, moved the Court for a new trial upon the grounds:
(1) That he had been denied a fair and impartial trial as provided by the Constitution of the United States, Amendment 7, and Section 25, Article 1, Constitution of South Carolina of 1895, on account of the use to which the child of the prosecutrix was put during the trial , in that:
(a) Under the law of this State, the child of the prosecutrix in a seduction case may be introduced in evidence for one purpose only, to wit, to corroborate the prosecutrix that she has been seduced, and, when the Solicitor took the baby in his arms and demanded that the defendant come down before the jury and take the child in his arms for the purpose of comparing their features and proving a physical resemblance between the two, his Honor ruled that the defendant could refuse to do so only upon the ground of his right to refuse to give evidence against himself. That this ruling was prejudicial and incorrect, and prejudiced the defendant before the jury, in that it put him in the light of refusing because of guilty knowledge. That his Honor should have ruled unequivocally that the child could not be introduced in evidence for the purpose of comparison.
(b) His Honor erred in permitting the Solicitor in his argument, over objection of counsel for defense, to exhibit the baby to the jury and dramatically claim that the defendant was the father of the child by claiming resemblance.
(c) His Honor erred in permitting the Solicitor in the course of his argument to take the baby in his arms and stand before the jury, using said child as an exhibit; said action being calculated to inflame the minds of the jury and prevent them from giving the defendant that fair trial guaranteed by the Constitutions of the United States and the State of South Carolina.
And (2) for alleged error of the Court in refusing to charge the jury, pursuant to defendant's sixth request to charge:
The Court instructs the jury that it is true that the law presumes that every woman is chaste and of good repute until the contrary appears; but also does the law presume every one to be innocent of crime until he be proven guilty. Hence we have one presumption nullifying the other , and in criminal trials the presumption of the innocence of the accused is stronger and must prevail till it is overcome by evidence beyond a reasonable doubt.
The first three grounds of the motion being presented by Mr. Price, of Bonham, Price Poag, in a special motion, while the last ground was argued by Mr. Bowen, all of counsel for the defense.
In order that there may be no misunderstanding about the matter, and that the record may be accurate, the Court feels constrained to state that Mr. Price was not in the Court House during the argument of the solicitor, and, upon the hearing of the motion for new trial, Mr. Bowen admitted that no objection was made by, or on behalf of, the defendant to the conduct of the solicitor in taking the baby in his arms before the jury, or in referring to its resemblance to defendant. Mr. Bowen further admitted in open Court, on the morning after the trial, and again at the hearing of this motion, that what actually transpired during the course of the Solicitor's argument to the jury was substantially as follows:
Solicitor (speaking): Mr. Foreman and gentleman of the jury, I asked the defendant, while he was on the stand, if he would step down before you in order that I might compare the baby with him. He refused, and the Court ruled that he could not be made to do so over his objection. I then asked him if he would voluntarily do so, and he refused. I then asked him if he would take the baby in his arms where he was (on the witness stand), and he refused, the Court ruling that he could not be made to do so over his objection; whereupon I asked him if he would voluntarily do so, and he refused. Now, Mr. Foreman and gentlemen of the jury, if I were charged with a crime of this nature, and innocent of said charge, I would gladly take the child in my arms and step down here before you, Mr. Foreman, and say, `Compare the two of us.'
To this argument alone was objection made by the defense, acting through Mr. Bowen, and the Court ruled that, since defendant had voluntarily become a witness, it was within the limits of legitimate argument for the Solicitor comment upon his demeanor and conduct upon the stand, just as he might refer in argument to the conduct and demeanor of any other witness during his examination.
It will be observed, therefore, and borne in mind, that none of the grounds of the motion is predicated upon the line of argument to which objection was actually made and ruled upon by the trial judge; and, further, that grounds (b) and (c), as I have designated them, of the special motion of Bonham, Price Poag, are not properly before me, as the basis of a motion for new trial, unless a trial Court is bound, even in misdemeanors , to take from an array of able and astute counsel the right to conduct the defense of their client in their own way, to hold that neither a defendant, nor his attorneys, can waive, even in misdemeanors, any of the rights of an accused, and to assume full responsibility for the conduct of the defense
of every one brought to the bar to plead to an indictment, to the end that counsel may not, in some unguarded moment of the trial Judge, waive, overlook, or fail to urge, either inadvertently or designedly, some right of the Court's ward.
I cannot willingly subscribe to the grafting of such a dangerous principle upon our system of jurisprudence, for, followed to its logical conclusion, it would mean that the asking of a single incompetent question by the State's attorney, unobjected to at the time by the defendant, or his counsel — whether inadvertently or designedly — could serve as the predicate for a new trial in the event of conviction; otherwise it might be argued that defendant had been convicted upon incompetent testimony, and that therefore he had not received a fair and impartial trial.
Apart from these considerations, however, I shall attempt to show, both upon principle and authority, that, even had there been objection on behalf of the defendant , the exhibition of the child of the alleged seduction is quite relevant and competent, not merely for the purpose of corroborating the testimony of the prosecutrix to the effect that she had been seduced by some one — a practice conceded by the defense, and well recognized in this jurisdiction, as evidenced by the decisions of our Court in Rumler v. Gantt , 121 S.C. 117 ; 113 S.E., 581 . State v. Teal , 108 S.C. 455 ; 95 S.E., 69 . State v. Whitaker , 103 S.C. 210 ; 87 S.E., 1001 , Ann. Cas., 1918-E, 467, and others — but for the purpose of showing the child's resemblance to the putative father, and thereby corroborating the testimony of the prosecutrix that the particular defendant on trial had seduced her.
It can scarcely be questioned that, in a civil action or criminal prosecution for seduction, it is of little concern that some one had seduced the woman, the material issue is whether the defendant did so; and yet it is argued that the child may be offered to corroborate the
testimony of prosecutrix that some one had seduced her, that some one had intercourse with her, but not for the purpose of showing its likeness to defendant and thereby corroborating her charge that he was her seducer. Since the testimony of prosecutrix must be corroborated by other evidence, and since evidence is but any matter of fact, the effect, tendency, or design of which is to produce in the mind of a persuasion, affirmative or disaffirmative, of the existence of some matter of fact. I am not impressed with the argument that the fruit of the seduction may not be exhibited to the jury for the purpose of showing its resemblance to the putative father, for the purpose of giving the jury the benefit of all evidence that may shed light upon the matter under investigation; and, if it be argued that evidence deduced from the appearance of an immature child is of too vague, uncertain, and fanciful a nature to be submitted to the consideration of a jury, the answer is that such objection goes to the weight rather than to the relevancy of such evidence.
In the instant case, the child, an infant something more than six months of age, was offered and admitted in evidence generally, and without objection on the part of the defendant, while the prosecutrix was upon the witness stand, and she was permitted, without objection, to identify it as the progeny of the defendant and herself. If it were proper for her to testify that it was the child of the defendant, why should the jury be denied the privilege of the opportunity of finding corroboration of that testimony in the child's likeness to the defendant, if such likeness existed, or of having something to predicate a reasonable doubt as to the guilt of the accused, if, in fact, there were no resemblance?
It will be borne in mind that defendant denied ever having had any intercourse whatever with prosecutrix, and whether or not her child bore likeness to defendant, and whether or not the jury could find stamped
upon its features physical corroboration of the testimony of prosecutrix, were, it occurs to me, proper matters for the determination of the jury, just as the weight and sufficiency of all other evidence was peculiarly for its consideration and determination.
A somewhat protracted investigation of precedents discloses that, in those States where conviction for seduction can be had only after, or upon, corroboration of prosecutrix's testimony, it is the settled practice to admit the child in evidence, not alone as corroborative of her testimony that some one had intercourse with her, that some one seduced her, but likewise for the purpose of showing its resemblance to the alleged seducer; and particularly is this so where defendant denies having had any intercourse whatever with the woman, since, in the first instance, physical resemblance makes for corroboration, and, in the second place, the production of a child of prosecutrix which resembles defendant reflected upon his credibility, and strengthens the testimony of prosecutrix. Such is the rule, irrespective of the age or maturity of the child, in Alabama, Arkansas, North Carolina, England and Canada. Watts v. State , 8 Ala. App. 264 ; 63 So., 18 . Tarver v. State , 17 Ala. App. 424 ; 85 So., 855 , though the same Court under the long-established rule in that State holds the child inadmissible for the purpose of showing resemblance when the infant was born as the result of coition at a time subsequent to that of the act relied upon as the seduction. Adams v. State , 93 Ark. 260 ; 124 S.W. 766 ; 137 Am. St. Rep., 87. State v. Horton , 100 N.C. 443 ; 6 S.E., 238 ; 6 Am. St. Rep., 613. State v. Malonee , 154 N.C. 200 ; 69 S.E., 786 . Anderson v. Auperle , 51 Or., 556 ; 95 P., 330 , a civil action. Rex v. Hughes , 2 Ont. L. Rep., 344; 17 Can. Crim. Cas., 450; 19 Ann. Cas., 534. Where it was held proper, in a prosecution for carnal knowledge of a female, to exhibit the child of prosecutrix to the jury, and
to have its resemblance to the defendant pointed out, the Court saying that such was the long-established practice both in England and Canada.
It would seem that, in those States where the child cannot be exhibited to the jury to show resemblance, it is also the practice not to permit profert for any purpose, and Iowa appears to be the only State requiring corroboration of the testimony of prosecutrix where the infant may not be offered for the purpose of showing physical likeness to the alleged seducer. While it is also held incompetent to make profert of the child for such purpose in Kentucky and Texas, it would seem that, in those States, conviction may be had upon the uncorroborated testimony of the woman; hence exhibition of the child could serve no useful purpose. See State v. Danforth , 48 Iowa, 43 ; 30 Am. Rep., 387, followed in State v. Hunt , 144 Iowa, 257 ; 122 N.W., 902. Gleason v. State , 77 Tex.Crim. Rep.; 178 S.W., 506. Jordan v. Commonwealth , 180 Ky., 379 ; 202 S.W., 896 ; 1 A.L.R., 617 (annotated).
Exhibition of an alleged child of defendant, for the purpose of showing resemblance, has been permitted in many other States in criminal prosecutions other than seduction, such as rape and assault, Arkansas, California, Illinois, Kansas, New Hampshire, Ohio, Oklahoma, Canada; bastardy, Utah, New Hampshire, Alabama, Arkansas, New Jersey, Ohio, Massachusetts, Mississippi, Connecticut, California.
The California Court, in People v. Burke , 18 Cal.App. 72 ; 122 P., 435 , a prosecution for attempted murder of a woman and her illegitimate child by the alleged father of the latter, in answer to the contention that the child should not have been allowed in evidence for the purpose of showing resemblance to defendant, gave the following unanswerable reason for sanctioning such practice: Family resemblance being nature's own identification, is so common and well known that there is no practical reason why the alleged
offspring should not be exhibited to the jury in any case. * * * The jury are the best judges on the question of similarity, and, unless it exists, a production of the offspring would be in the defendant's favor.
And said the Massachusetts Court, in Finnegan v. Dugan , 14 Allen, 197: It is a well-known physiological fact that peculiarities of feature and personal traits are often transmitted from parent to child. Taken by itself, proof of such resemblance would be insufficient to establish the paternity; but it would be clearly a circumstance to be considered, in connection with other facts tending to prove the issue on which the jury are to pass. This was a bastardy case.
See, also, State v. Anderson , 63 Utah, 171 ; 224 P., 442 ; 40 A.L.R., 94, annotated note, pages 97-175.
And, in the Courts of Common Pleas in South Carolina, the child may be offered to show resemblance in an action for seduction of plaintiff's daughter by defendant, exhibition of the daughter's child was competent to show its resemblance to the putative father , WHICH WAS ONE OF THE FACTS IN ISSUE, quoting from syllabus of Rumler v. Gantt , 121 S.C. 117 ; 113 S.E., 581 , citing State v. Whitaker and State v. Teal, supra.
Hence, unless the rules of evidence in civil actions are different from those in criminal prosecutions, the precise question has already been settled by our Court against the contention of defendant. But the general rules of evidence are the same in criminal as in civil proceedings. State v. Danforth , 73 N.H. 215 ; 60 A., 839 ; 111 Am. St. Rep., 600; 6 Ann. Cas., 557. Gaunt v. State , 50 N.J. Law, 490 ; 14 A., 600 .
The sound rule is to admit the fact of similarity of specific traits, however presented, provided the child is, in the opinion of the trial Court, old enough to possess settled features or other corporal indications. 1 Wigmore on Evidence, § 166.
I am quite satisfied, therefore, that, even had there been objection on behalf of defendant, it would have been proper to exhibit the child in the instant case for the purpose of showing its likeness to defendant, as well as to permit the Solicitor to hold it before the jury that they might discern whether there was resemblance or lack of it. And, since there was no objection, and since this was a prosecution for misdemeanor, I am of the opinion that it was not the duty of the trial Judge, sua sponte , to interfere. It is true that the rights of the accused should be protected by the Courts, but, if there ever were a time in the history of this commonwealth when society should have protection at the hands of the Courts, as well as the accused, it is now and, in my opinion, new trials should not be granted merely because there is a suggestion that some act of the State's attorney, unobjected to at the time, might possibly have influenced the jury to such an extent that their oaths were forgotten and their verdict rendered in passion and prejudice. In the case at bar, the Court observed nothing that could lend the slightest color to such a fanciful presumption.
As to ground (a) of the special motion, it is only necessary to say that when the Solicitor asked defendant if he would step down off the witness stand and suffer a comparison of the child's features with his own, objection thereto was made by the defense, and sustained by the Court. It is scarcely accurate to charge that the trial Judge ruled that defendant could refuse to do so only upon the ground of his right to refuse to give evidence against himself , which, of course, was unsound, since having voluntarily become a witness in his own behalf, he could not claim the right to refuse to answer a question on the ground that it would tend to incriminate him on the particular offense for which he was being tried. When objected to, the Court sustained the objection, assigning the wrong reason therefor, but, since the objection was sustained
and a physical comparison of features denied, the defense succeeded in preventing what it objected to, and it can scarcely be said that any right of the accused was denied him merely because the Court gave the wrong reason for sustaining the position taken on behalf of, and by, the defendant. As a matter of fact, I am now inclined to the opinion that, since a child of the alleged seducer may be offered for the purpose of showing physical likeness to him, it would have been proper to overrule the objection of defense counsel on this point, if the ruling of the Court could have been enforced without prejudicing the defendant by the threat of a citation for contempt, had he refused to obey the ruling. To grant a new trial in this case because the wrong ruling was assigned in sustaining defendant's objection to the effort of the State to effect a close up comparison of the features of the child and the defendant, and, perchance, thereby the Court might have prejudiced his defense before the jury and caused them to convict him for that reason, in total disregard of their oaths, would, it occurs to me, mark the extreme in preserving inviolate the technical rights of an accused.
Moreover, the jury was specifically instructed by the trial Court that they were the sole judges of the facts in issue, and they were particularly cautioned that no word or act of the trial Judge, at any time during the progress of the trial, could be construed by them as an intimation of his opinion upon the facts of the case.
As to the alleged error of the Court in refusing to charge defendant's sixth request to charge to the effect that the presumption of innocence and the presumption of chastity nullified each other , suffice it to say that, ever since the decision in State v. Turner , 82 S.C. 278 ; 64 S.E., 424 ; 17 Ann. Cas., 88, the chastity of the prosecutrix has been presumed in prosecutions for seduction, and, in conformity with the statute, where the other elements of the offense are made out, the burden is upon , that if the State prove the other elements of the offense, the presumption of chastity will support a conviction, UNLESS THE DEFENDANT PROVE THE PROSECUTRIX TO BE LEWD AND UNCHASTE. Hence, that decision is necessarily authority for the position that the two presumptions do not nullify each other. If they did, then the State would necessarily be required to establish chastity by evidence which is not the rule here. If the presumption of innocence nullified the presumption of chastity, there would be no presumption of chastity, because the former presumption attaches to defendant as soon as he is indicted. Moreover, if we have one presumption nullifying the other, to quote the exact language of the request, then we have no presumption of innocence, since the presumption of chastity has destroyed it, which is, of course, unsound.
It is, therefore, ordered that the motion be, and the same is hereby, refused. Source: CourtListener
