Bailey v. State

• Citation: 78 N.W. 284,57 Neb. 706
• Parties: BAILEY v. STATE.
• Decision Date: 09 February 1899
• Court: Supreme Court of Nebraska

57 Neb. 706

78 N.W. 284

BAILEY

v.STATE.

Supreme Court of Nebraska.

Feb. 9, 1899.

Syllabus by the Court.

1. A woman not “previously unchaste,” within the meaning of section 12 of chapter 4 of the Criminal Code, is one who has never had unlawful sexual intercourse with a male prior to the intercourse with which the prisoner stands indicted.

2. The object of the statute is to protect the virtuous maidens of the commonwealth,––to protect those girls who are undefiled virgins; and a female, under 18 years of age and over 15 years of age, who has been guilty of unlawful sexual intercourse with a male, is not within the act.

3. The gist of the crime denounced by this statute is the defilement of a virgin, with her consent, over 15 and under 18 years of age, by a man over 18 years of age.

4. The prisoner was indicted for rape, under the statute, for having, in Nebraska, had sexual intercourse, with her consent, with a girl over 15 and under 18 years of age, and not “previously unchaste.” The evidence showed that the female, after she was 15 years of age, and before her sexual intercourse with the prisoner in Nebraska, had had illicit sexual intercourse for the first time with him in the state of Iowa, and that she had sustained such relations with no other man than the prisoner. Held, that the evidence would not sustain a conviction.

5. In such an indictment may be included all acts of unlawful sexual intercourse which occurred between the prisoner and the prosecutrix in the state of Nebraska after the female became 15 years of age, and which were not barred by the statute of limitations.

6. The state, in a criminal prosecution, may not invoke against the prisoner the doctrine of estoppel.

7. To sustain a criminal conviction, it is not enough for the state to show that the prisoner indicted has violated the spirit of the statute, but the evidence must show beyond a reasonable doubt that he has offended against the very letter of the law.

Error to district court, Douglas county; Slabaugh, Judge.

George C. Bailey was convicted of crime, and brings error. Reversed.Macfarland & Altschuler, for plaintiff in error.

C. J. Smyth, Atty. Gen., and W. D. Oldham, Dep. Atty. Gen., for the State.

RAGAN, C.

Section 12 of chapter 4 of the Criminal Code of this state, among other things, provides: “If any male person of the age of eighteen years or upwards shall carnally know or abuse any female child under the age of eighteen years with her consent, unless such female child so known and abused is over fifteen years of age and previously unchaste, every such person so offending shall be deemed guilty of a rape.” George C. Bailey was indicted in the district court of Douglas county, under the statute just quoted, for having on the 13th day of June, 1898, had sexual intercourse with one Clara Blue with her consent; she then and there being a female of the age of 16 years, and not previously unchaste. Bailey was convicted and sentenced to the penitentiary, and brings that judgment here for review on error. Of the numerous assignments of error argued in the brief, it would subserve no useful purpose to notice but two:

1. The evidence in the bill of exceptions shows without contradiction that in June, 1898, Clara Blue was between 16 and 17 years of age; that no man had ever had sexual intercourse with her, except the prisoner; that in March of that year she lived in the state of Iowa; that the prisoner formed her acquaintance at an hotel in Pacific Junction, in that state, in the month of March, 1898; that with her consent he then had sexual intercourse with her in Iowa; that subsequently, in June of said year, she came to the city of Omaha, in this state, and on the 13th of said month, and at divers other times before and after that date, he again had sexual intercourse with her in this state, she consenting thereto. As to the meaning of the phrase “previously unchaste,” found in the statute just quoted, the district court instructed the jury as follows: “By the phrase ‘unchaste,’ as used in the law defining rape, is meant lewd; having an indulgence of lust; and, as applied to a female child previously unchaste, means that she was previously (before the act complained of) lewd, or had an indulgence for lust.” The prisoner took an exception to the giving of this instruction. We do not approve of the construction placed upon the phrase in the statute, as embodied in this instruction. The definition of an unchaste woman, within the meaning of the statute, is by the district...