Dallas v. State

• Decision Date: 15 August 1918
• Citation: 79 So. 690,76 Fla. 358
• Parties: DALLAS v. STATE.
• Court: Florida Supreme Court

79 So. 690

76 Fla. 358

DALLAS v. STATE.

Florida Supreme Court

August 15, 1918

Error to Criminal Court of Record, Hillsborough County; W. S Graham, Judge.

T. T Dallas was convicted of crime, and he brings error. Reversed.

Syllabus by the Court

SYLLABUS

In a prosecution for having carnal intercourse with an unmarried woman under the age of 18 years, of previous chaste character, the previous chaste character of the prosecutrix is a material element of the offense to be alleged and proven.

When the state has met the requirement of proving the previous chaste character of the prosecutrix, it is competent for the defendant to introduce evidence that the prosecutrix, prior to the alleged acts of carnal intercourse with the defendant had associated with persons of low morals, conducted herself in a free and intimate manner with men, or permitted them to take liberties with her.

In a prosecution for having carnal intercourse with an unmarried woman under the age of 18 years, of previous chaste character, it is reversible error for the court to charge that 'as to the previous chaste character of the prosecuting witness the law presumes that every unmarried female is of chaste character until she has been shown to be otherwise.'

COUNSEL Alonzo Wilder, of Tampa, for plaintiff in error.

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

OPINION

BROWNE C.J.

The plaintiff in error was convicted of the charge of having carnal intercourse with an unmarried female, under the age of 18 years, of previous chaste character.

The last assignment of error, based upon the court's denial of the defendant's motion for a new trial, raises the question of the sufficiency of the testimony to support the verdict. It was established that she was unmarried. The woman testified to the carnal intercourse, and her mother testified that the defendant admitted it. All this the defendant denied. The testimony as to her age was not very clear, but as the jury were satisfied with it, and there was some competent evidence, as to the carnal intercourse and to her being under 18 years of age, we will not disturb the verdict because of the insufficiency of the evidence on these points.

The evidence of her previous chaste character we will discuss with other assignments.

The sixth, seventh, eighth, and ninth assignments of error relate to the refusal of the trial judge to permit the defendant to introduce testimony to prove acts on the part of the prosecuting witness that would tend to show lack of chastity.

The questions which form the basis of the sixth and seventh assignments were too broad, and objections to them were properly sustained. The questions which form the basis of the eighth and ninth assignments were:

'Q. Have you ever seen this girl in any act of familiarity with any man in the last six months?' 'Q. Have you seen this girl Sallie France sitting in the lap of any man during February or March of this year?'

The last question is in the assignment of errors, but is not in the bill of exceptions, and therefore it cannot be considered by this court except as indicating what should be done on another trial if this evidence should be offered.

The prosecutrix testified to her previous chaste character, and the testimony sought to be adduced by these questions was proper as tending to show a lack of chastity on her part, or as affecting her character for chastity.

Where, as in this case, the previous chaste character of the prosecutrix is a material fact to be proven beyond a reasonable doubt, it is proper for the defendant, when the state has met the requirement, to introduce evidence that the prosecutrix had, prior to the alleged act of carnal intercourse with the defendant associated with persons of low morals, conducted herself in a free and intimate manner with men, or permitted them to take liberties with her. State v. Bige, 112 Iowa, 433, 84 N.W. 518; Creighton v. State, 41 Tex. Cr. R. 101, 51 S.W. 910.

In Safford v. People, 1 Parker Cr. R. (N. Y.) 474, the court said:

'But I think the defense is not confined to cases of actual incontinency, but may prevail upon the ground of reputation alone, and that if the jury find the female really had the reputation of being unchaste, the case is not within the statute. The use of the word 'character' is important in this respect, and in such case she does not come within the class described in the act, although illicit intercourse, in fact, cannot be proved.'

The first, fourteenth, fifteenth and sixteenth assignments of error raise substantially the same question, the propriety of this charge: 'The court instructs you as to the previous chaste character of the prosecuting witness that the law presumes that every unmarried female is of chaste character until she has been shown to be otherwise.'

The defendant was charged with violating chapter 6974 of the Acts of 1915. This act was amendatory of section 3521 of the General Statutes, and the only change in the law was the insertion of the words 'of previous chaste character.'

We cannot be unmindful of the fact that, from the time this statute was first enacted until the amendment of 1915, the words 'of previous chaste character' were not part of the law; and, when the Legislature inserted these words, they made the previous chaste character of the prosecutrix one of the essential elements of the crime. These are: (1) Carnal intercourse; (2) the female must have been unmarried at the time of the carnal intercourse; (3) she must be of previous chaste character; (4) she must have been under the age of 18 years at the time of the carnal intercourse.

It is necessary to allege and prove each of these elements beyond a reasonable doubt, but the instruction complained of assumes the existence of one of the material elements of the offense, and relieves the prosecution of the necessity of furnishing any proof thereof.

The only cases cited by the state in support of the soundness of the instruction, where the language of the statutes are the same or of similar import to ours, are from Georgia and New York.

The case from the last-named state is that of Crozier v. People, 1 Parker Cro. R. (N. Y.) 453, the second headnote to which is as follows:

'By 'previous chaste character' the statute means personal chastity, actual character, not reputation. In the absence of proof such chastity will be presumed. But the presumption may be overcome by specific acts of lewdness proved affirmatively, on the part of the defendant.'

A note by the reporter, however, calls attention to the fact that:

'From other cases reported in this volume, it will be seen there are differences of opinion upon the last two propositions. See People v. Alger [1 Parker Cr. R. (N. Y.)] page 333, and People v. Safford [1 Parker Cr. R. (N. Y.)] page 474.'

And an examination of these cases lessens the effect of the Crozier Case.

In a discussion of this question in State v. Holter, 32 S.D. 43, 142 N.W. 657, 46 L. R. A. (N. S.) 376, Ann. Cas. 1916A, 193, the court said this about the New York decisions:

'Our attention has not been called to any case decided by the Court of Appeals of New York that turned upon the precise question involved in this case. Kenyon v. People, 26 N.Y. 204, 84 Am. Dec. 177, cited by the state, does not support the contention of respondent. It appears from an examination of the opinion of the court in that case that the prosecutrix testified to her being of previous chaste character, and Balcom, J., in his concurring opinion, said it was proper for the state to show this fact.'

In those states that hold that in this class of cases the previous chastity of a prosecutrix will be presumed, and no proof is necessary to establish it, the statutes are silent about her previous chastity, and we are not called upon to approve or disapprove of the rule in those cases, as our statute makes the previous chaste character of the prosecutrix a material element of the offense. As has been well said, the rule of the presumption of tho chastity of an unmarried woman is a shield of the accused, and not the sword of the prosecution. Thus, where a woman stands charged with an offense where her chastity is challenged, the law humanely presumes her to be chaste. It is but a corollary of the presumption of her innocence.

It is a shield to protect...