
    Supreme Court — General Term — Second Department.
    October 26, 1894.
    PEOPLE v. STEPHEN C. DURYEA.
    (63 St. Rep. 181; 81 Hun, 390.)
    Seduction—Promise of marriage.
    Seduction, under promise of marriag-e in case the female became pregnant, is not within section 384 of the Penal Code.
    Appeal from a judgment of conviction for seduction under promise of marriage.
    John R. Reed, for appellant.
    Walter H. Jaycox, Dist. Atty., and E. A. Carpenter, for the People.
   BROWN, P. J.

The appellant was convicted at the court of sessions in Suffolk county of the crime of seduction under promise of marriage. The indictment charged that the crime was committed in February, 1890, upon one Addie Oakley. Upon the trial the complainant’s testimony as to the promise of marriage was as follows: “He asked me to have connection with him. I told him ‘Ho.’ I would not let him. I never let any man, and I would not let him. He said: ‘Addie, I promise you faithfully I will marry you.’ I never answered him. He asked me again. He said again: ‘Addie, I promise you faithfully I will marry you if I get you into trouble.’ After that I gave in.”

The testimony of the complainant, given before the committing magistrate, was read in evidence by the defendant, to the effect that the promise of the defendant was that, if she should become pregnant, he would marry her, and that she did not remember of his making any other promise. It appeared also that she told her father that defendant had promised to marry her “if he got her into trouble.”

The court refused the defendant’s request to charge the jury that, if they found that the promise to marry was conditional upon the complainant’s becoming pregnant, they must acquit; and the exception to this refusal presents the only question necessary to be considered upon this appeal. Under the charge of the court, we must assume that the jury may have found that the promise to marry was conditional upon the complainant’s becoming pregnant. It is very questionable, I think, whether the testimony permitted them to find any other promise; but assuming, as it is claimed by the prosecution, that it did, the question is presented whether such a conditional promise is sufficient to bring the case within the statute. The crime is defined as follows: “A person who under promise of marriage seduces and has sexual intercourse with an unmarried female of previous chaste character is punishable,’5 etc. Pen. Code, §284.

The case relied upon to support the conviction is that of People v. Hustis, 32 Hun, 58. So far as I am informed, this is the only authority that sustains this view of the statute. The decision was by a divided court, and the correctness of the conclusion there reached was questioned in People v. Van Alstyne, 78 Hun, 509; 61 St. Rep. 232. The prevailing opinion in People v. Hustis is based upon the assertion that the question had been decided by the court of appeals in Kenyon v. People, 26 N. Y. 203, and Boyce v. People, 55 id. 644. In those cases the promise testified to was that the accused would marry the prosecutrix if she would consent to have connection with him, and neither case presented the question of a promise conditional upon pregnancy. The distinction between the two promises is apparent. In the ease of a promise conditional upon immediate intercourse, the condition is performed at the moment of the sexual act, and the promise to marry becomes absolute at once. Seduction in such a case is clearly accomplished under a promise to marry. In the case of a promise conditional upon pregnancy, there is no absolute promise at the time of the intercourse, and the condition is such that there may never be any. It is impossible to have seduction under a promise to marry when the only promise at the time of the seduction is one depending upon an event that may never occur. To bring a case within the statute, the promise of marriage must be the inducement to, and must exist at the time of, the act of sexual intercourse. The case of People v. Hustis has no support in the authorities cited to sustain it, and should be overruled. The exception referred to was well taken, and the judgment must be reversed, and there must be a new trial.

All concur.  