John Magdall Appellant;
and
His Majesty the King Respondent
1920: June 8, 9, 21.
Present:—Sir Louis Davies C.J. and Idington, Duff, Anglin,
Brodeur and Mignault JJ.
ON APPEAL FROM THE APPELLATE DIVISION OF THE SUPREME COURT OF
ALBERTA.
Criminal law—Seduction under promise of marriage—Previous
illicit connection—Previous chastity of complainant—Findings of the jury—Arts.
210, 212, 1002, 1140 Cr. C.
[Page 88]
The appellant was convicted for having, under promise of
marriage, seduced and had illicit connection with an unmarried female of
previously chaste character under the age of 21 years. The girl complainant, at
the trial, admitted that she had had illicit connection with the appellant on
one previous occasion under mutual promise of marriage.
Held, Duff and Brodeur JJ. dissenting, that the fact of
the previous seduction did not preclude the jury from finding the complainant
to be "of previously chaste character" within the meaning of article
212 Cr. C., the question whether or not the facts and surrounding circumstances
could justify such a conclusion being one to be determined by the jury alone.
Judgment of the Appellate Division (15 Alta. L.R. 313; [1920]
2 W.W.R. 251) affirmed, Duff and Brodeur JJ. dissenting.
APPEAL from the judgment of the Appellate Division of the
Supreme Court of Alberta,
dismissing, on equal division of the court, the appeal by the appellant from
the refusal of Simmons J., at the trial with a jury, to reserve a case for the
opinion of the Appellate Division.
[Page 89]
The material facts of the case and the questions in issue are
fully stated in the above head-note and in the judgments now reported.
W. F. O'Connor K.C. for the appellant.
W. L. Scott for the respondent.
THE CHIEF JUSTICE.—This was an appeal from the judgment of
the Appellate Division of the Supreme Court of Alberta which, on an equal
division of opinion, refused to quash a conviction against the appellant
prisoner under section 212 of the Criminal Code for having, under promise of
marriage, seduced and had illicit connection on or about the 27th day of March,
1919, with one Mary Kovack, an unmarried female under the age of 21 years.
Two questions only were raised and argued at bar: one, whether
the evidence of Mary Kovack, the female in question, was corroborated or not;
and the other, whether she was at the time of the alleged offence of previously
chaste character.
After hearing Mr. O'Connor, counsel for the appellant, on the
question of corroboration, we were unanimously of the opinion that there was
sufficient evidence of corroboration, and Mr. Scott was not called on to reply
on that point.
The second question raised a much more delicate and difficult
point: Was the jury justified in not finding the complainant Mary Kovack, at
the time of the illicit connection of the 27th March between her and the
prisoner, a girl of previously unchaste character?
The material facts necessary to reach a conclusion on that point
are fully set in the learned judge's reasons given in the Appellate Division.
The
[Page 90]
parties were, at the time of the
commission of the offence on the 27th March, and for some length of time before
that, engaged to be married to each other. They were both of them foreigners whose
parents had emigrated to Canada. At a date about the latter end of December
previously or the beginning of January, and at a time when the marriage
engagement existed, there had been on one occasion illicit connection between
the prisoner and Mary Kovack, but at the time this prosecution commenced, more
than twelve months having elapsed, that offence was barred by the statutory
limitation of time.
The prosecution, therefore, was necessarily confined to the
second offence of the 27th March, 1919, a date when the engagement for marriage
still continued, and the question immediately arose whether on the admission by
the complainant of the first offence having taken place in the latter end of
December or the beginning of January previously she could be found by the jury
to have been of "previously chaste character" on the 27th March when
the second offence was committed.
Some evidence was given in prisoner's behalf by some young men to
the effect that the girl complainant was not chaste, but the jury disbelieved
that evidence, and the sole question, therefore, remains whether the single
lapse of virtue by her with the prisoner on or about the last of December when
the parties were under a mutual promise of marriage prevented the jury finding
her to be of "chaste character" when the offence of March 27th was
committed.
I am not able to accept the argument that such a single fall from
grace of a woman, engaged to a man to whose solicitations she yields, either
because of a weaker will than his or that combined with affection
[Page 91]
and a hope of their prospective marriage
under his promise, necessarily stamps that woman as one of an unchaste
character for all future time. That surely cannot be so. There must come a time
when repentance and pureness of living can rehabilitate her as a chaste
character within the meaning of the statute.
Whether or not the facts and surrounding circumstances justify
such a conclusion can only be determined by a jury.
In this case, the jury had the advantage of seeing the complainant
in the witness box and hearing from her all the material facts necessary to
enable them to reach a conclusion as to her family relationship, nationality,
occupation, conditions and habits of life, marriage engagement with the promise
and other material facts, and to determine from her manner, demeanour and
evidence when examined and cross-examined, whether she should be believed in
whole or in part.
The prisoner acting upon his rights remained mute.
The result was that they found her not to be of an unchaste
character when the offence of 27th March was committed, and, unless I am
compelled to find that one previous fall from virtue with the same man to whom
on both occasions she was engaged to be married prohibits a jury from finding
the same woman afterwards to be of a chaste character within the meaning of the
Code, then I must accept the jury's finding. There is no arbitrary lapse of
time which I can suggest as necessary before a jury can so find. It must be a
case for determination on the facts and circumstances of each case. But
assuming the jury to have been properly charged and directed upon the question,
I think it would require a very extreme case to justify a court of appeal in
setting aside their finding.
[Page 92]
In substance, then I conclude that if under such circumstances as
we have in this case before us, a woman falls to the solicitations of a man to
whom she is engaged to be married, she does not, from that single fact,
necessarily become such an unchaste character within the meaning of those words
in the section of the Code before us as prevents a jury finding her, three
months afterwards, not to be unchaste in character. It must be in the very
nature of things a fact for the jury, under all the proved facts and being
properly directed, to find.
There is no statutory limit of time which must elapse in order
that she may rehabilitate herself. There is no arbitrary time which the court
may set up which must so elapse. I cannot set up my judgment, not having seen
or heard the witnesses but simply from reading the record, against the findings
under proper direction of the jury who did see and hear them.
I would, therefore, dismiss the appeal.
IDINGTON J.—The questions raised by the dissenting
judgment so far as relevant to the requirement by the statute of corroboration
"in some material particular" were practically disposed of on the
argument.
For my part I am of the opinion that in such a case the previous
relations of the parties concerned may well form the subject of inquiry and
evidence adduced on such a basis become of the most cogent character for the
purposes of corroboration.
When that is applied herein there seems to be no reason for
doubting the evidence of the girl.
But its very application and the mode of thought by which it
becomes effective, tend to raise much doubt and difficulty in regard to the
other question of the girl having at the time in question been of previously
"chaste character."
[Page 93]
The dissenting opinion of Mr. Justice Stuart with which Mr.
Justice Ives concurred, is the basis of any jurisdiction we may have to hear
this appeal, and on this latter ground I have some difficulty in finding a
clear and decided dissent.
The burden of his argument deals with the question of want of
corroboration and all incidental thereto. He holds the evidence of what took
place in December was inadmissable when presented, as it was, by the Crown.
The burden of proof relative to the want of previous chastity by
the complainant is expressly cast, by section 210 of the Code, upon the accused.
If it was, however, admitted in evidence, then I think he had a
right to rely upon it, for what it was worth, as fully as if adduced
specifically on his own behalf.
Yet Mr. Justice Stuart contents himself with relying upon the
non-admissibility of it relative to the question of corroboration.
The question of her previous chastity is presented by objections
Nos. 3 and 4 of appellant's counsel at the trial, as follows:
3. His Lordship should have withdrawn the case from the jury
on the ground that there was evidence of previous unchastity.
4. Assuming in the complainant's favour all the facts that
the jury could upon evidence reasonably find in her favour, that is, assuming
that the accused in undertaking the burden of proving the unchastity which
section 210 casts upon him proved against the complainant the least that the
jury could upon the evidence reasonably find against her, were those facts such
as to constitute the complainant a girl of previously unchaste character?
Mr. Justice Stuart in his final disposition of this part of the
appeal disposes of it as follows :—
As to question 3, my view is that, under the existing
authorities and precedents especially in the American States whence the law has
come, the case should have been withdrawn from the jury and I would answer it
in the affirmative. But in view of my much firmer opinion on questions 2 and 5
I do not think it necessary to discuss the matter more fully. This also makes
an answer to question 4 unnecessary.
[Page 94]
These points though submitted as separate really in substance
deal with one and the same issue in law. The learned judge appears to answer
one hesitatingly and declines to answer the other.
Is that such a dissent as to entitle us to speak? I have grave
doubts as to its being so. We should have a clear and explicit dissent to rest
our jurisdiction upon.
The majority of the court think it is, and answer accordingly.
As I understand the proposed answer it is to be that the question
was one for the jury.
And, as the learned trial judge left it to the jury in a way that
cannot be complained of, unless that he should have withdrawn the case from the
jury entirely, and the majority of this court hold he could not do so, I may
say that I much doubt if that is a satisfactory view of the law applicable to
the very peculiar facts in question herein.
Many decisions have been given that tend to uphold such a ruling,
but I doubt if any of them have gone quite so far as to justify the so holding
in this peculiar case.
I do not hold any such decided opinion as to warrant my dissent.
I see no good purpose to be served by enlarging upon the matter.
Indeed to meet the possibility of such a case as of this class
again arising, enabling the offender to set up his own wrong as a means of
defence, I submit the law might well be so amended as to prevent the
possibility of such a curious means of defence.
DUFF J (dissenting).—This appeal should, in my
opinion, be allowed on the short ground that evidence of previous conduct could
only be admissible as tending to shew a reciprocal state of feeling between the
two
[Page 95]
persons concerned making it not only
probable that the prisoner would desire to have intercourse with the
prosecutrix but a disposition on her part also to yield to him. It could not be
admitted for the purpose of shewing merely that the accused was a person who
was likely to try to commit the offence with which he was charged; and it could
only be admitted as evidence of a reciprocal guilty inclination existing at the
time the offence was alleged to have been committed. The result must be either
that the prosecution alleging the woman was chaste on the occasion of the
occurrence out of which the complaint arises could not be allowed to say that
the evidence was admissible or that the evidence having been admitted upon
assumptions inconsistent with "chastity" on any reasonable
interpretation of the words used in the statute, a verdict against the accused
involving a finding of chastity could not legally be based upon such evidence.
To hold otherwise would be playing fast and loose with justice.
ANGLIN J.—It was intimated on the argument that the court
was of opinion that there was sufficient corroboration of the complainant's
story to satisfy the statute (sec. 1002 of the Criminal Code). The King v.
Shellaker,
is direct authority for the admissibility of some of this corroborative
testimony and The King v. Ball,
indicates its value and effect.
On the other question I am of opinion that from the facts deposed
to by the complainant—that she had received many visits from the appellant and
that they had spent many hours together between Christmas, 1916, and the 27th
of March, 1917, when the act of illicit connection on which the present case
rests occurred, and that there had been no illicit
[Page 96]
intercourse between them in that
interval—if believed by them, the jury might not unreasonably draw the
inference that the complainant, although seduced by the appellant under promise
of marriage about Christmas, 1916, had so far recovered herself on the 27th of
March, 1917, as to have become at that time once more a woman "of
previously chaste character" within the meaning of sec. 212 of the
Criminal Code. If, as is practically conceded, that section does not require
that the woman should be virgo intacta—if, as I think, the doctrine of
rehabilitation is admissible under it, I am unable to accede to the contention
that the trial judge should, or could properly, have withdrawn this case from
the jury. It was for them to determine what credit should be given to the
complainant's evidence, and what inference should be drawn as to the chastity
of her character—for that was the issue—on the 27th of March, three months
after the one previous act of unchastity which she admitted.
I would dismiss the appeal.
BRODEUR J. (dissenting).—There was a question
raised in this appeal as to whether the evidence of the complainant had been
corroborated. It is not necessary on a charge of criminal seduction under
promise of marriage that the corroboration should be as to every fact, it is
sufficient if it confirms the belief that the prosecutrix is speaking the
truth. Art. 1002 Criminal Code; The King v. Daun.
There are facts disclosed by other witnesses than the complainant
which show conclusively that there was criminal intercourse between the
complainant
[Page 97]
and the accused and that this intercourse
took place at the time the promise of marriage was made. I have no doubt that
there was sufficient corroboration.
But the main question is whether the complainant was of a "previously
chaste character," as required by section 212 of the Criminal Code.
The girl was seduced for the first time, according to her own
story, by the appellant on Christmas Day, 1918. But she failed to lay any
charge for this offence during the year which followed its commission and there
was limitation of time for commencing a prosecution on this offence of
Christmas 1918 (Sec 1140 s.s. e-5). Then she made a charge against the
appellant that she was seduced a second time by him in March, 1919. During her
evidence at the trial she had to admit that she had surrendered her chastity
three months before March, 1919.
Her own statement and admission as to having lost her chastity a
few months before the relations of March, 1919, made it imperative on the trial
judge to withdraw the case from the jury, because one of the essential
ingredients of the crime which is charged did not exist, according to the
statement of the complainant herself. She was no more a chaste woman in March,
1919. Of course, the burden of proof of previous unchastity was upon the
accused (art. 210 C.C.); but the evidence of the girl herself rendered it
unnecessary for the accused to bring any witnesses to prove her unchastity.
It is contended, however, that a woman who has been guilty of unchaste
conduct may subsequently become chaste in legal contemplation and be seduced a
second time. But no evidence was brought to
[Page 98]
show that this girl regained her chastity
in the few months which elapsed between December, 1918, and March, 1919. The
jury could not, with the evidence they had before them, declare that this girl
was, in March, 1919, of a "previously chaste character." Their
verdict should be set aside and the prisoner should have been acquitted.
The appeal should be allowed with costs.
MIGNAULT J.—The only question on which this court found it
advisable to hear counsel for the respondent was whether there was evidence on
which the jury could find that the complainant; notwithstanding the fact of her
seduction by the appellant under promise of marriage about the beginning of
January, 1919, was an unmarried female "of previously chaste
character" when she was seduced by the appellant on the 27th March of the
same year. The evidence was that although the complainant met the appellant very
frequently from January to the 27th March, she did not, after the first
seduction, have any illicit connection with him until the latter date. From
this evidence the jury could infer that notwithstanding her fall in January,
she had rehabilitated herself and was on the 27th March an unmarried female
"of previously chaste character." It is not for us to say that we
would have so considered her, but the question is whether the previous
seduction of the complainant precluded the jury on the evidence from finding
that she had rehabilitated herself, or, in the words of the statute, that she
was then an
unmarried female of previously
chaste character under twenty-one years of age.
[Page 99]
This was eminently a fact for the jury's determination, and I cannot say that there was no evidence
to go to the jury on which they could find this fact.
The appeal should be dismissed with costs.
Appeal dismissed.
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