Bowers v. State of Ohio. proper in such a case, she should be regarded as the mere agent of the daughter. MOTION for the allowance of a writ of error to the Court of Common Pleas of Sandusky county. This was an indictment for seduction, under the statute of April 4, 1859 (S. & C. 452). On the trial, the defendant offered to prove that the prosecutrix had had illicit carnal intercourse with men other than himself prior to the time of his alleged offense. This evidence was rejected by the court, and the defendant excepted to the ruling. The prosecutrix having been examined by the state as a witness, and having denied, on her cross-examination, that she had ever admitted that the defendant's intercourse with her was had without any promise of marriage, the defendant offered evidence to prove such admission. But it appearing that the supposed admission was made in confidential consultation with her attorney, in a bastardy proceeding which she had commenced against the defendant, and that no one except her mother, herself, and her attorney was present at the interview, the evidence was objected to, and the objection was sustained by the court. To this ruling also the defendant excepted. The defendant testified as a witness in his own behalf. He admitted the illicit intercourse, but denied the promise of marriage. He testified, and also gave in evidence the testimony of others, tending to prove, that he had had such intercourse with the prosecutrix prior to the time of the alleged seduction, and without promise of marriage. After the testimony had closed, he asked the court to charge the jury that if they were satisfied, from the evidence, that the prosecutrix, previous to the alleged seduction, had engaged in sexual intercourse with the defendant, and if it did not appear that such previous intercourse was under a promise of marriage, then they should acquit the defendant. This instruction the court refused to give, and the defendant took exception. Bowers v. State of Ohio. The defendant was convicted, and sentenced to the penitentiary, and he now claims that there was error in the court's rejection of the testimony so offered, and in refusing the instruction asked. John M. Lemmon, for the motion, in support of the claim that the evidence offered should have been admitted, cited: 2 Addison on Torts, 1097; 7 C. & P. 308; 4 Comst. 493; Bishop's Stat. Crimes, secs. 649, 650; 55 N. Y. 515; 1 Wis. 216; 4 Minn. 334; 48 Ga. 192, 295; 11 Mich. 283. Bartlett & Finefrock, contra: The statute determines the rule as to the character of the evidence required to convict, and that rule is: "Good repute of the prosecutrix for chastity." Under this rule it is obligatory upon the state, in the first instance, to give evidence of the good repute of the prosecutrix for chastity, as the ordinary legal presumption in this particular has no application to this class of cases. This evidence must be confined to the general reputation or character of the prosecutrix for chastity. Reputation is defined to be general repute. French v. Millard, 2 Ohio St. 44. Repute is defined to be: "Character reputed or attributed; established opinion; estimate; the credit or honor derived from common or public opinion; character; reputation." -Webster. The character for chastity of the prosecutrix in this class of cases can not be impeached by evidence of particular acts of unchastity, but only by general evidence of her reputation in that respect. McComb v. State, 8 Ohio St. 643; Bucklin v. State, 20 Ohio, 18; Roscoe Crim. Evidence, 97, 177; 4 Phillips on Evidence, 754; Cowen & Hill's Notes, part 2, note, 388; 1 Greenl. on Evidence, sec. 461, p. 517; 3 Greenl. on Evidence, 2 ed., sec. 214, p. 195; Rex v. Clark, 2 Starkie, 214. Nor can she be interrogated as to previous criminal intercourse with persons other than the accused himself, nor Bowers v. State of Ohio. is such evidence of other instances admissible. McComb v. State, 8 Ohio St. 643; People v. Jackson, 3 Parker's Crim. Rep. 391. Privileged Communications.-The communications between the prosecutrix and the attorneys, Lemmon and Finch, sought to be given in evidence on behalf of the accused, are privileged, and were very properly excluded by the court. Seney's Code, sec. 314, p. 441; 1 Greenl. on Evidence, sec. 273, p. 276; King v. Barrett, 11 Ohio St. 261. WELCH, C. J. The instruction asked by the defendant and refused by the court, and the rejection of testimony tending to show specific acts of lewdness on the part of the prosecutrix, raise the same question, namely, whether the protection of the statute extends to all females under the age of eighteen whose reputation for chastity is good, or only to such as have deservedly acquired that reputation by a pure life. It seems to us that the plain words of the statute leave no room for doubt on this question. The statute provides: "That any person over the age of eighteen years, who, under promise of marriage, shall have illicit carnal intercourse with any female of good repute for chastity, under the age of eighteen years, shall be deemed guilty of seduction." Language could hardly be plainer. It is the reputation and the age of the female, and not her previous conduct, that bring her within the protection of the statute. The law wisely and justly accords to the erring female a locus pœnitentiæ. If she has repented of her past error, and by her upright walk acquired an unimpeachable reputation for chastity, the law protects her against the man who overcomes her good resolves by a promise of marriage. It is the purity and integrity of her mind, and not merely those of her person, that the law designs to guard against the attacks of the seducer; and it looks alone to her general repute as evidence of that purity and integrity. We think, therefore, that the court was right in excluding eviVOL. XXIX-35 Bowers v. State of Ohio. dence of specific acts of intercourse by the prosecutrix with persons other than the defendant. Evidence of the defendant's previous connection with her stands on a different basis. Such evidence was properly admitted, not, however, for the purpose of impeaching her character, but because it tends to show that the criminal act charged was not committed under a promise of marriage. We are supported in this view of the case by decisions in several of the states, under similar or analogous statutes. We refer to 11 Ind. 466; 13 Id. 46; 20 Id. 44; 21 Id. 15; 25 Id. 90; 29 Id. 267; 26 N. Y. 203. The remaining question is, whether the court erred in refusing to receive evidence of the alleged admission of the prosecutrix, made in consultation with her attorney. We think not. She was a mere witness and not a party, and as such witness was compelled to testify. The case, therefore, comes clearly within the rule in regard to privileged communications, unless the presence of her mother at the time of her interview excludes it. It is well established that the privilege extends as well to communications to or through an agent, as to those made directly to the attorney by the client in person, and we think it is only a dictate of decency and propriety to regard the mother in such a case as being present and acting in the character of confidential agent of her daughter. The daughter's youth and supposed modesty would render the presence and participation of her mother appropriate and necessary. We see no error in the case, and the motion must be overruled. Motion overruled. Cooper v. Rowley. CHARLES COOPER v. JEROME ROWLEY. The action authorized by the fourth section of the Act for the Prevention of Gaming, passed March 12, 1831 (1 S. & C. 664), to recover money or other property lost or paid over on a bet or wager, is an action upon a statute for a penalty or forfeiture, within the meaning of the provisions of section 16 of the code of civil procedure. MOTION for leave to file a petition in error to the District Court of Knox county. The original action was brought in the court of common pleas by the plaintiff against the defendant, May 20, 1872, upon a petition in the following words and figures: "The plaintiff, Charles Cooper, says the said defendant, Jerome Rowley, is justly indebted to him in the sum of fifteen hundred dollars ($1,500), with interest thereon from the 15th day of October, 1868, for money won by said defendant from said plaintiff, and by said plaintiff paid to said defendant on or about said 15th day of October, 1868, at the city of Mount Vernon, Ohio, on a certain bet concerning the result of a certain election then pending, whereby the plaintiff's action accrued to him, according to the form of an act for the prevention of gaming, passed March 12, 1831." Prayer for judgment. The defendant demurred to the petition on the ground that it did not state facts sufficient to constitute a cause of action, in that it appeared upon the face of the petition to be barred by the statute of limitations. The court sustained the demurrer and dismissed the petition, and, on error, the district court affirmed the judgment. Leave is here asked to file a petition in error to reverse both judgments. H. H. Greer and A. R. McIntire, for the motion. |