Deas v. State

• Citation: 119 Fla. 839,161 So. 729
• Parties: DEAS v. STATE.
• Decision Date: 28 May 1935
• Court: United States State Supreme Court of Florida

161 So. 729

119 Fla. 839

DEAS v. STATE.

Florida Supreme Court, Division A.

May 28, 1935

Error to Circuit Court, Lake County; J. C. B. Koonce, Judge.

Wallace Deas was convicted of having unlawful carnal intercourse with a female under 18 years of age, and he brings error.

Reversed for a new trial.

COUNSEL Harry P. Johnson, of Tavares, for plaintiff in error.

Cary D Landis, Atty. Gen., and Roy Campbell, Asst. Atty. Gen., for the State.

OPINION

PER CURIAM.

This is an unfortunate case wherein it appeared by the evidence adduced at the trial that plaintiff in error had a number of acts of carnal intercourse with a sixteen year old girl, finally resulting in the girl's pregnancy and the subsequent prosecution and conviction of plaintiff in error for a violation of chapter 8596, Acts 1921, § 1 (section 7552, C. G. L., section 5409 R. G. S., as amended), denouncing as a felony any act of unlawful carnal intercourse with any unmarried person (male or female) of previous chaste character, who is at the time of such unlawful carnal intercourse under the age of eighteen years. The present writ of error is from a judgment and sentence to one year's imprisonment imposed upon plaintiff in error for a violation of the above-stated statutory inhibition.

According to the testimony of the prosecutrix, the first act of sexual intercourse was committed with her by the defendant in the back part of a country church about a year prior to the trial. At the time of this occurrence, so the prosecuting witness testified, there were present her thirteen year old sister and a boy companion seated in the front part of the church waiting for the congregation to assemble for the night church services which were just about to begin. Subsequent acts of intercourse were alleged to have taken place between the parties on the way home from church, in a hammock, and on the way to and from a field. The defense was apparently predicated upon the girl's lack of a previous chaste character rather than upon any pretended denial of the alleged habitual course of mutually agreeable sexual intercourse that seems to have been kept up between the parties on more or less frequent occasions succeeding the first episode that had happened in the back of the church as hereinabove stated.

Prior to chapter 8596, Acts 1921, section 5409, R. G. S., was limited in its application to the punishment of those male persons who should be means of unlawful carnal intercourse violate the chastity of an unmarried female person under eighteen years of age. The purpose of the 1921 amendment (passed at the first session of the Legislature elected after the ratification of the national woman's suffrage amendment) was to abolish the distinction as to sex, and thereupon to provide for the protection of the chastity of all unmarried persons, whether male or female, under the age of eighteen years when of previous chaste character.

So the gist of the offense denounced by the 1921 act is the violation of the previous chaste character of a person under eighteen years of age by the having of unlawful carnal intercourse with such previously chaste person. Thus the statute, as it now reads, is designed to protect the youth of this state of both sexes from the initial violation of their actual previous condition of sexual chastity rather than from the consequences of their subsequent voluntary indulgence in immorality, or the promiscuous engaging in sexual intercourse on the part of those persons under eighteen years of age who by reason of an already acquired sexual promiscuity are no longer of previous chaste character within the statutory definition of the crime denounced by the 1921 law. The law was amended in 1921 to produce this very change, and the courts of the state are bound to take notice of the effect of the amendment that has been made.

In this case the defense was based on an asserted lack of previous chaste character on the part of the prosecuting female when the defendant first had sexual intercourse with her as she testified at the trial. To rebut the testimony of the prosecuting witness as to her previous chaste character, that is, of her undefiled virginity, prior to her initial indulgence with the defendant, the defendant attempted to introduce in evidence proof of the general reputation of the prosecuting female as an unchaste girl in the community in which she lived. The evidence was ruled out and the defendant excepted.

Where the defense does not consist of a complete denial of any and all acts of unlawful sexual intercourse as charged (in which case proof of previous chaste character of the prosecuting female is only formally or technically required, like proof of venue, etc.), but is predicated on the express or implied admission that sexual intercourse did take place, but was with a subject not within the definition of the statute as a person of previous chaste character, evidence tending to show the common and general unchaste reputation of the prosecuting female in a case like this should be received as tending to throw light on the veracity of the testimony of the witness that her own previous character was that of a chaste female when such proof is confined to a time at or prior to the alleged unlawful act of sexual intercourse with her upon which the state relies for a conviction. State v. Patterson, 88 Mo. 88, 57 Am. Rep. 374. This is in consonance with the holding in Prior v. Oglesby, 50 Fla. 248, 39 So. 593, wherein it was held that whatever evidence is offered which will assist the jury in knowing which party speaks the truth of the issues in a case should be regarded as relevant and received, when to admit it does not override other formal rules of evidence.

Another circumstance complained of as error at the trial is that shown by the following quotation taken from the trial judge's authenticated bill of exceptions:

'At 5:00 o'clock P. M., the jury returned into open court, and the following proceedings were had:

'By the Court: Gentlemen of the jury, have you agreed upon a verdict?

'By the Foreman: We have not agreed, your Honor. We have come back to ask that the prosecuting witness's testimony, given on the stand, be reviewed, so as to fix the time of the first sexual intercourse.

'(Reporter's Note:--Being permitted by the Court, the Reporter here read to the jury, from his phonetic notes, the direct examination and a portion of the cross-examination of Lily Mae Hunt.)

'By the Foreman (addressing his fellows): Are you satisfied?

'(Reporter's Note:--To which question of the foreman, the other jurors nodded their heads in the affirmative.)

'By the Court: Gentlemen of the jury, I think it is proper to remind you that the State is not confined to fixing the exact date to the time alleged in the indictment. It is enough, if you are sufficiently satisfied that the crime was committed at

...