Bynum v. State

• Citation: 80 So. 572,76 Fla. 618
• Parties: BYNUM v. STATE.
• Decision Date: 09 January 1919
• Court: Florida Supreme Court

80 So. 572

76 Fla. 618

BYNUM v. STATE.

Florida Supreme Court

January 9, 1919

Error to Circuit Court, Columbia County; M. F. Horne, Judge.

J. C Bynum was convicted of carnal intercourse with an unmarried female of previous chaste character under the age of 18 years, and he brings error. Reversed.

Ellis and West, JJ., dissenting.

Syllabus by the Court

SYLLABUS

This court will consider, without assignment, such errors as are jurisdictional and fundamental in character.

In a prosecution for having carnal intercourse with an unmarried female of previous chaste character under the age of 18 years, the chastity of the female at the time laid in the indictment when the act occurred must be established

In a prosecution for this offense, it is reversible error to admit testimony showing the sufferings, or impairment of health, of the prosecuting witness as a result of the carnal intercourse, as such testimony is not material to prove the issues and tends to prejudice the minds of the jury against the defendant.

COUNSEL A. P. Rivers, of Lake City, for plaintiff in error.

Van C Swearingen, Atty. Gen., and Worth W. Trammell, Asst. Atty Gen., for the State.

OPINION

BROWNE C.J.

J. C Bynum, convicted in Columbia county of having carnal intercourse with an unmarried female of previous chaste character under the age of 18 years, seeks reversal here on writ of error.

The indictment alleges, among other things, that on the 10th day of June, 1917, the prosecutrix was an unmarried female under the age of 18 years of previous chaste character. It was essential to prove each of these material elements of the statutory offense. Chaper 6974, Acts 1915. Where the testimony uncontrovertibly proves that at the time the alleged act of carnal intercourse took place the prosecutrix was not then a chaste woman, a conviction cannot stand. The prosecutrix testified that the defendant first had carnal intercourse with her somewhere in January of last year. The indictment was found and the trial had in 1918; the first act occurred in January, 1917.

She also testified that after the first act they continued to have sexual intercourse about once a week during the whole time he was going with her.

For about six months prior to the date on which the indictment alleges she was a chaste female, she had been indulging in sexual intercourse about once a week. Was she on June 10th the chaste person the law is designed to protect? As was well said by the court in the case of State v. Patterson, 88 Mo. 88, 57 Am. Rep. 374:

'I cannot believe that the legislative protection, intended only for the pure and innocent in heart, was designed to be extended over those who, being vile and impure, have nothing left for the law to guard.'

In that case it was held that, if the prosecutrix had had sexual intercourse with the defendant prior to the time alleged in the indictment, it was competent evidence to go to the jury on the question of her 'previous chastity.' The court said:

'Any evidence, therefore, which shows, or materially tends to show, that there was, at the time the alleged offense is charged to have been committed, no chastity, in the given case cannot be otherwise than competent and relevant. How better can you establish this fact than by specific acts of unchastity? Is it not the highest and best evidence of the fact in issue, and will not one of the most hackneyed rules of evidence apply as well here as in innumerable other cases of daily occurrence? Evidence of prior specific acts of unchastity with the defendant himself is now universally received, as well in cases of seduction as in cases of rape. What for? To show that in the latter class of cases there was less likelihood of absence of consent; and that in the former, in consequence of a prior act of the defendant, there was no chastity left to seduce. Can it be material by whom the prior act be performed, whether by the defendant, or whether by any one else? Is it any the less seduction because Jones is the seducer instead of the defendant, Smith? If in any civil or criminal trial where Smith is defendant I offer evidence showing a prior specific act of Jones which rendered the subsequent act of defendant, Smith, morally as well as physically impossible, will any court in Christendom reject the proferred evidence?'

In O'Neill v. State, 85 Ga. 383, 11 S.E. 856, Chief Justice Bleckley said: 'Those who, by their own consent, have ceased to be virgins, are not virtuous.' The prosecutrix in the case at bar by her own consent ceased to be a virgin six months before the time when it was alleged in the indictment that she was chaste. See, also, People v. Clark, 33 Mich. 112; People v. Smith, 132 Mich. 58, 92 N.W. 776.

Some courts hold that where the prosecutrix indulged in carnal intercourse prior to the time when the act charged in the indictment took place, but had reformed, a conviction for her seduction as a chaste woman will stand, if the other elements of the offense be proven. State v. Moore, 78 Iowa, 494, 43 N.W. 273. We are not called upon to pass on that question here, as it is clear that there was no semblance of reformation; the prosecutrix admitting that she had carnal intercourse with the defendant once a week for about six months before the act charged in the indictment, and continued in the gratification of their lust until late cotton picking time.

The court denied a motion for a new trial, the first, second, third, and fifth grounds of which attack the verdict because it was contrary to the evidence and the law. There is no assignment of error based on the refusal of the court to grant a new trial, but this court has said that it will consider without assignment of error such errors as are jurisdictional and fundamental in character. Parker v. Dekle, 46 Fla. 452, 35 So. 4; Sylvester v. State, 46 Fla. 166, 35 So. 142; Hoodless v. Jernigan, 46 Fla. 213, 35 So. 656; Atlantic Coast Line R. Co. v. Benedict Pineapple Co., 52 Fla. 165, 42 So. 529.

As there can be no legal conviction where the state not only fails to prove its case, but, as happened here, disproved it it was reversible error to deny the motion for a new trial on the grounds that the verdict was contrary to the evidence and the law, for...