(78 Hun, 509.)

#### PEOPLE v. VAN ALSTYNE.

(Supreme Court, General Term, Fifth Department.

June 20, 1894.)

Seduction—Cbtminal Prosecution—Evidence.

On an indictment for seduction, complainant testified that defendant said he would marry her if she would submit to his desires; that he said, “if he got me in the family way, he would marry me;” and that she yielded on reliance on his promise to marry her. *Held,*that the question whether the conditional promise to many, qualified the promise which preceded it was properly submitted to the jury.

Appeal from court of sessions, Monroe county.

*543George R. Van Alstyne was convicted of seducing one Jennie M. Campbell under a promise of marriage, and from the judgment of conviction, and from an order denying a motion for a new trial, defendant appeals.

Affirmed.

Argued before DWIGHT, P. J., and LEWIS, HAIGHT, and BRADLEY, JJ.

H. B. Hallock, for appellant.

Howard H. Widener, Asst. Dist. Atty., for the People.

HAIGHT, J.

The defendant was indicted for having, on the 16th day of September, 1891, under and by means of a promise of marriage made to Jennie M. Campbell, seduced and had sexual intercourse with her, she being then an unmarried female of previous chaste character. Upon the trial the sexual intercourse was admitted by the defendant. All of the other questions involved were sharply controverted. We have carefully examined the testimony, and reach the conclusion that the verdict is supported by the evidence.

At the trial, after the evidence was closed, the counsel for the defendant moved for his discharge upon the grounds that the evidence showed that there was no promise of marriage, necessary to constitute the offense, under the Code, and that the facts did not show a seduction, within the statute. This was denied, and an exception was taken. The court then charged the jury:

> "There must be a promise of marriage,—not simply a promise that the defendant would marry the complainant in case she became pregnant. That would be a mere conditional promise,—conditional upon the happening of an event which might never occur. It must have been an unconditional promise of marriage, made as an inducement to this act of sexual intercourse, and relied upon by the complainant in giving herself up to the defendant.”

The defendant’s counsel then asked the court to charge, as matter of law, that under the evidence no case of seduction under promise of marriage, under the Penal Code, has been made out. This was refused, and an exception was taken. The question is thus presented as to whether there was evidence of a promise of marriage, sufficient to sustain the verdict. Upon this point the complainant testified that on the evening of the 16th day of September, 1891, she was returning from a social at Mr. Lonsberry’s, with the defendant, in a carriage, and that on their way home—

“He wanted I should do as he wanted me to, and I objected. He put his lines around the whip, and put his arms around me, and tried to make me, but I told him I would not; and so he drove on further, to where we turned to come home. He kept teasing me all the way along, and said, if I would, ■ he would marry me. I said I didn’t want any boy to have to marry me in that way, and he said he would; and finally he turned around, and wanted me to, again, and said he would not have turned around if he had thought I was not going to let him. He told me, if he got me in the family way, he would marry me. I told him I didn’t want to have any boy obliged to marry me. He said he didn’t want to be obliged to, but would. And he wanted me to get out of the wagon, and I would not Finally, I yielded to him, and he had connection with me.”

*544She further testified that she yielded on the strength of, and in faith and reliance upon, the statement that he would marry her. There was sufficient corroborating testimony to carry this question of fact to the jury.

It is contended, however, that the promise here testified to was not a promise to marry in case she submitted to his wishes, but that it was only a conditional promise that he would marry her in case he got her in a family way. It is true, such an expression appears in her evidence, but it will be observed that he first promised to marry her if she would let him do as he wished. He thus held out that inducement to her, and then allayed her fears by telling her that if she got in a family way he would marry her; and, in answer to her statement that she didn’t want to have any boy obliged to marry her, he stated that he did not want to be obliged to, but would,—thus indicating that the marriage would be voluntary on his part. The appellant argues that the subsequent conditional promise of marriage qualified the promise that preceded it; but we do not think that the court could so hold or charge, as a matter of law, and that the trial court very properly submitted the question to the jury. The charge upon this branch of the case was as favorable to the defendant as he was entitled to.

It is contended on behalf of the people that, • even though the promise was conditioned upon her pregnancy, still it would be within the provision of the Code, under the authority of People v. Hustis, 32 Hun, 58. It was so held by a majority of the court in that case, but we have doubts in reference to the correctness of the conclusion there reached. Our attention has been called to no case in the court of appeals where the question has been determined. In Armstrong v. People, 70 N. Y. 38, the question was specially reserved, the court stating that it did not intimate an opinion either way upon the question. Under the view taken by us, its determination here is unnecessary.

An exception was taken to the admission of the testimony of the complainant as to the date her child was born. She said it was born on the 25th day of June, 1892. She states that the seduction took place on the 16th day of September, 1891. The time intervening exceeds but a few days the usual period of gestation, and is within the time frequently occupied in such'cases. It is therefore some corroboration of her testimony. Armstrong v. People, 70 N. Y. 38. In this respect the case of People v. Kearney, 110 N. Y. 188, 17 N. E. 736, is distinguishable. But, if this were not so, it appears to us the evidence did no harm, for it had been shown without objection that she had become pregnant, and—from the defendants own showing—that bastardy proceedings had been instituted. The judgment, conviction, and order should be affirmed, and the case remitted to the court of sessions of Monroe county to proceed thereon. All concur.