
    Supreme Court—Appellate Division—Second Department.
    July, 1901.
    THE PEOPLE v. CLARENCE J. RYAN.
    (63 App. Div. 429.)
    Seduction.
    Where it cannot be said that there was no testimony which would have justified a finding from the whole case that reliance of the woman was upon the conditional promise of the man that if she" got in trouble he would marry her, it was error for the trial judge to refuse to charge tlia't “if the prosecutrix submitted herself to the defendant, relying upon his promise that if she got in trouble as a result of the intercourse, he would marry her, the defendant is not guilty.”
    Appeal by the defendant, Clarence J. By an, from a judgment of the County Court of Dutchess county in favor of the plaintiff, rendered on the 4th day of March., 1901, convicting the defendant of the crime of seduction under promise of marriage, and also- from an order bearing the same daife, denying the defendant’s motion for a new trial and in arrest of judgment and'conviction
    Frank B. Lown, for the appellant.
    William B. Lee, District Attorney, for the respondent.
   Jenks, J.

The defendant appeals from a judgment of conviction of seduction, and' contends that there was error in the refusal of the learned county judge to charge this request: “If the prosecutrix submitted herself to the defendant, relying’ upon his promise that if she got into trouble as a result of the intercourse, he would marry heir, the defendant is not guilty.” Upon the element of promise, the learned judge had only charged: “In order to arrive at a verdict of guilty, it is necessary that you find from competent evidence in the case that a valid promise of marriage existed, and that under the influence, and induced by that promise, this young woman submitted to' the acts of illicit sexual intercourse testified to.”

The statute does not punish the man when the woman bargains for marriage only in case there he danger of some public knowledge of the illicit intercourse, or of proof thereof. Therefore, if the moving cause of the woman’s consent be a promise of marriage conditional upon her pregnancy, the defendant cannot be found guilty. People v. Van Alstyne, 144 N. Y. 361; People v. Duryea, 30 N. Y. Supp. 811; S. C., 81 Hun, 390, approved in People v. Van Alstyne, supra. If a woman betrothed submit to her lover, the absolute promise implied in betrothal will not warrant his conviction for se-duction if shie yield in reliance on his special promise that be will marry her in ease pregnancy follow the illicit relation. People v. Van Alstyne, supra. Though testimony was given in this case which would have justified the finding that the woman and the man were under engagement of marriage, this did not warrant the refusal of the request if there was testimony which fairly and reasonably would have justified the finding from the whole ease that the inducement was the special and conditional promise.

The prosecutrix testified that she engaged herself to' the defendant early in June, 1900; that she had intercourse with him first at the close of that month, which was continued for some months; that she first told him of her condition in September, 1900, when she said that she “was in trouble.” On cross-examination she testified: “Q. Was this talk of getting married repeated on, the night that he first had connection with you? A. Yes, sir. Q. What did he say then? A. He said if I got in any trouble he could go out and wda*k and take care of ma Q. If he got yon in trouble after connection he would go out to- work and take care of yon ? A. Yes, sir. Q. And did you rely upon that statement! in permitting him toi have connection with you, that if you got in trouble he would marry yon and go to work and take care of you? A. Do, sir, we were engaged before that. Q. Did you pay any attention to' what he said that night that he would marry you and take care of yon? A. Yes, sir. Q. Is that the reason why you permitted him to have connection with you, his promise that if he, got you into trouble he would take care of you, is that what induced you to let him have connection with you ? A. We were engaged first. Q. Is that promise what led him tlo have connection with you? A. Yes, sir. . . . The subsequent time that he had connection he did not renew that promise that if I got into trouble he would marry me. Q. He said that only oncei? A. He said it often, but not after each time. Q. And did you rely upon that promise in permitting him to have eoimieotioini with you ? A. Yes, sir.” On redirect examination she also testified that' she permitted him te» have intercourse because of the engagement in June.

I "think that it cannot be said that there was no testimony which would have justified a finding from the whole case that the reliance of the woman was upon the conditional promise, and, therefore, I am of opinion that the exception was well. - taken.

Armstrong v. People, 70 N. Y. 38, cited by the learned district attorney,. does not touch the question presented by this appeal, as appears both by page 53 of the reported ease and by the comments of Peckham, J., in the Van Alstyne case (supra, p. 364).

The judgment of conviction must be reversed for the error and a new trial granted.

All concurred.

Judgment of conviction reversed and new trial ordered. '  