Howell v. State

• Decision Date: 29 October 1935
• Citation: 121 Fla. 327,163 So. 691
• Parties: HOWELL v. STATE.
• Court: Florida Supreme Court

163 So. 691

121 Fla. 327

HOWELL v. STATE.

Florida Supreme Court

October 29, 1935

Error to Criminal Court of Record, Duval County; Wm. J. Porter Judge.

Cecil Howell was convicted of having unlawful carnal intercourse with unmarried female under the age of 18 years and of previous chaste character, and he brings error.

Reversed for new trial.

BUFORD and BROWN, JJ., dissenting.

COUNSEL De Hoff & De Hoff, of Jacksonville, for plaintiff in error.

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

OPINION

PER CURIAM.

Howell was convicted of the offense denounced by chapter 8596 General Laws of Florida, Acts 1921, now section 7552, C. G L., 5409, R. G. S., as amended. The principal issue at the trial of this case was whether or not the state established beyond a reasonable doubt, as it was required to do under the law in order to sustain a conviction, the alleged previous chaste character of the prosecuting female witness who was unmarried and was under the age of eighteen years at the time plaintiff in error was accused of having had unlawful carnal intercourse with her in violation of the above-cited statute, which punishes as a felony any unlawful carnal intercourse with unmarried persons (either male or female) under the age of eighteen years, if such persons are at the time of such carnal intercourse, not only under age, but of previous chaste character as well. Blount v. State, 102 Fla. 1100, 138 So. 2, 80 A. L. R. 830; Deas v. State (Fla.) 161 So. 729.

A careful review of the testimony in this case adduced by the state to prove the alleged previous chaste character of the prosecuting female at the time of the alleged unlawful carnal intercourse shows that the evidence is of such unsatisfactory character that a majority of the court are of the opinion the ends of justice will be best subserved by the award of a new trial. Woodward v. State, 113 Fla. 301, 151 So. 509, and authorities cited therein.

Reversed for a new trial.

WHITFIELD, C.J., and TERRELL and DAVIS, JJ., concur.

BUFORD and BROWN, JJ., dissent.

DISSENTING

BUFORD Justice (dissenting).

I find myself unable to agree with the conclusions reached in this case by my associates:

In Williams v. State, 92 Fla. 125, 109 So. 305, 306, we said:

"Chaste' is defined as meaning 'pure from all unlawful commerce of the sexes'; applied to persons before marriage, it signifies pure from all sexual intercourse. Previous chaste character, as used in the law in cases of this kind, means 'actual personal virtue and not reputation.' 2 Words and Phrases [First Series], p. 1092, and cases there cited.

'The witness having testified that no one else had ever had sexual intercourse with her, this was proof of previous chaste character in the manner in which the law contemplates that personal chastity--actual character--shall be proven.'

In Blount v. State, 102 Fla. 1100, 138 So. 2, 80 A. L. R. 830, we said:

'The statute is directed against seduction of numarried persons of previous chaste character under eighteen years of age. Formerly such statutes in this state were aimed at the masculine gender of the genus. Holton v. State, 28 Fla. 303, 9 So. 716. The statute has undergone some verbal changes in that particular, chapter 8596, Laws 1921, but its purpose is still the protection of persons of immature age from licentiousness. Under the present statute the guilty person commits a felony; formerly the offense was a misdemeanor. See section 2598, Rev. St. 1892.'

In Deas v. State, 161 So. 729, 730, we said:

'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 consequence 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.'

Measured by the rule stated in either of these cases, I find nothing in the record to warrant the reversal of the judgment upon the theory that the evidence of the previous chaste character of the girl involved in the case is so unsatisfactory as not to have been entitled to credence by the jury.

The girl was 13 years of age and unmarried. She lived at the home of her parents. The evidence is conclusive that there had been no complaint about her misconduct, nor any observation of misconduct on her part by the county probation officers or the city officers of the city of Jacksonville until the time when this unfortunate affair occurred. The man involved in the case, the defendant here, was 40 years of age; he had a family; one daughter who was about the same age of the girl involved here. This daughter and this girl were associates and playmates. They visited the home of one another and associated together. The state introduced a policewoman of the city of Jacksonville, Mrs. Mattie G. Tipton. Mrs. Tipton testified that she had never had any conversation with Nell Brown nor any investigation concerning her until two or three days after the matter involved here occurred. The sum and substance of her testimony was: That she first met Nell Brown at the police station, and there she also met the defendant. There Nell Brown told her about going to a rooming house on Pearl street with the defendant Howell on the night of the 12th of January and spending about two hours in bed there with him. That at that time he did not have sexual intercourse with her. That on the night of the 18th of January he took her to the same rooming house, and there they spent the entire night together, and the offense was committed which was here charged. She also testified that she had some report about the girl going to some other house and that she had been out into the park, but there is absolutely no evidence by this policewoman that there was any immoral conduct on the part of the girl prior to her going to the rooming house on the 12th of January with the defendant.

The same is true of the testimony of Captain Cannon of the police force and of Mrs. F. O. Wilder, an assistant probation officer.

The mother and father of the girl both testified to her previous chaste character.

The only witnesses who have been found to give testimony adversely to the previous chaste character of this girl were the defendant himself and his daughter, who was the playmate of the girl, and whose testimony amounted to no more than an insinuation of previous bad conduct.

The defendant testified that he had not had sexual intercourse with the girl, though he admitted that he went...