Hunter v. State

• Decision Date: 25 January 1923
• Citation: 95 So. 115,85 Fla. 91
• Parties: HUNTER v. STATE.
• Court: Florida Supreme Court

95 So. 115

85 Fla. 91

HUNTER v. STATE.

Florida Supreme Court

January 25, 1923

Rehearing Denied Feb. 3, 1923.

Error to Circuit Court, Jackson County; C. L. Wilson, Judge.

John Hunter was convicted of having unlawful sexual intercourse with an unmarried female under the age of 18 years, of previous chaste character, and he brings error.

Affirmed.

Browne J., and Taylor, C.J., dissenting.

(Syllabus by the Court.)

COUNSEL W. E. B. Smith, of Marianna, for plaintiff in error.

Rivers Buford, Atty. Gen., and J. B. Gaines, Asst. Atty. Gen., for the State.

OPINION

WEST J.

The defendant, John Hunter, plaintiff in error in this court, was indicted by a grand jury in Jackson county charged with having unlawfully had sexual intercourse with Ruby King, an unmarried female under the age of 18 years, of previous chaste character. Upon a trial there was a verdict of conviction. To review the judgment imposing sentence writ of error was taken from this court.

The only point made by counsel for plaintiff in error, and submitted for determination on this writ of error, is that it was shown by the evidence introduced on behalf of the state that the defendant did, upon several occasions prior to the date alleged in the indictment, have intercourse with the unmarried female named, and it is contended that because of this proof she was not, at the time of the alleged offense, of previous chaste character, and therefore the offense charged is not proved. There is no merit in this contention. The established general rule is that, except in those cases where the allegation of the precise time is material, a different date from that alleged in the indictment before the date of the return of the indictment, and within the statute of limitations, may be proved at the trial as the date upon which the crime was committed. Straughter v. State, 83 Fla. 683, 92 So. 569; Whatley v. State, 46 Fla. 145, 35 So. 80; Chandler v. State, 25 Fla. 728, 6 So. 768. Every proved instance of intercourse between the defendant and the female person named was in Jackson county, and was prior to the return of the indictment and within the statute of limitations. At the time of the first act of unlawful intercourse the female named was of previous chaste character, if the statement made by her that she had never previous to that time had sexual intercourse with any one else, which was not disputed, was true. There is no reason why this class of cases should be withdrawn from the general rule stated. The defendant, upon a charge of this kind, should not be permitted to assert that the female person named did not upon the date alleged possess the virtue of chastity because he had upon a previous date, prior to the return of the indictment, and within the statute of limitations, robbed her of it, and upon that theory demand that he be discharged by a court whose function it is to administer justice.

In so far as the case of Bynum v. State, 76 Fla. 618, 80 So. 572, is in conflict with the views herein expressed, it is overruled.

The judgment is affirmed.

WHITFIELD and ELLIS, JJ., concur.

TAYLOR, C.J., and BROWNE, J., dissent.

CONCURRING

WHITFIELD J. (concurring).

The indictment herein charges:

'That John Hunter, of the county of Jackson and the state of Florida, on the 15th day of September, in the year of our Lord 1921, in the county and state aforesaid, did unlawfully, feloniously, has sexual intercourse with and carnally know Ruby King, an unmarried female, she, the said Ruby King, being at the time of such sexual intercourse and carnal knowledge of her by the said John King under the age of 18 years, and of previous chaste character.'

The allegation is that Ruby King was 'at the time of such sexual intercourse and carnal knowledge * * * of previous chaste character,' not that 'on the 15th of September, 1921, Ruby King was of chaste character.' The chastity of the female has no reference to a particular time, but to a particular carnal act. 1 Wharton Cr. Law (10th Ed.) § 106, p. 302; 22 Cyc. 314. It is not contended that under a statute making it an offense for a person to have carnal intercourse with an unmarried female under 18 years of age the time alleged in the indictment of the date of the carnal act is material and must be proven as alleged, but the insistence is that the addition of the words 'of previous chaste character' to the statutory definition changes the rule as to alleging and proving the date of the offense, and makes the allegation of the precise time material to be proven as alleged. The authorities do not sustain this contention.

In defining the offense the prior statute required the female person to be (1) unmarried and (2) under the age of 18 years, while the present statute merely adds another condition, (3) of previous chaste character. This addition to the definition of the offense does not make time of the essence of the offense, any more than the elements of being unmarried and under 18 years of age did under the former statute; therefore the addition of the words 'of previous chaste character' does not change the rule shown herein to be established in this and other states as to the allegation and proof of the time of the commission of an offense. Alexander v. State, 40 Fla. 213, 23 So. 536; Weinert v. State, 35 Fla. 229, 17 So. 570; Warrace v. State, 27 Fla. 362, 8 So. 748; Chandler v. State, 25 Fla. 728, 6 So. 768; Straughter v. State, 83 Fla. 683, 92 So. 569; Thorp v. Smith, 64 Fla. 154, 59 So. 193; 16 C.J. 529; 14 R. C. L. 180; 1 Bishop's New Crim. Proc. § 400; 1 Wharton's Crim. Proc. (10th Ed.) § 103, p. 300. Time is material when the offense may be committed only on certain days, where written instruments are pleaded, where the statute is not in force, or is a bar, etc. See Dacy v. State, 17 Ga. 439, 442; Anderson v. State, 20 Fla. 381; Thorp v. Smith, 64 Fla. 154, 59 So. 193; Warrace v. State, 27 Fla. 362, 8 So. 748; Thompson v. State, 56 Fla. 107, 47 So. 816.

In Bynum v. State, 76 Fla. 618, 80 So. 572, the writer concurred in the majority opinion upon the theory that the allegation op previous chastity was a part of the definition of the statutory offense, and should be proven as alleged, and also because the evidence as to previous chastity was quite unsatisfactory. See State v. Dacke, 59 Wash. 238, 109 P. 1050, 30 L. R. A. (N. S.) 173, and cases cited; Bailey v. State, 57 Neb. 706, 78 N.W. 284, 73 Am. St. Rep. 540; Rodgers v. State, 111 Miss. 781, 72 So. 198; People v. Nelson, 153 N.Y. 90, 46 N.E. 1040, 60 Am. St. Rep. 592; State v. McMahon, 234 Mo. 611, 137 S.W. 872; Carpenter v. People, 8 Barb. (N. Y.) 603; State v. Foster (Mo. Sup.) 225 S.W. 671.

In the Dacke and Rodgers Cases, where the convictions were reversed, the initial act of carnal intercourse by which the chastity of the female was destroyed was committed in another county than the one in which the defendant was indicted. In the Bailey Case the initial act was committed in another state. In the Nelson and McMahon and Carpenter and Foster Cases the initial act was committed more than the statutory period of limitation before the indictment was found. In Cloninger v. State (Tex. Cr. App.) 237 S.W. 288, the court confined the prosecution to the second act of carnal intercourse. In People v. Bressler, 131 Mich. 390, 91 N.W. 639, a date subsequent to the first carnal act was elected by the state.

The Florida statute which took effect November 29, 1918, provides:

'That from and after the passage and approval of this act any male person who has unlawful carnal intercourse with any unmarried female person of previous chaste character, who is at the time of such intercourse under the age of eighteen years shall be punished by imprisonment in the state penitentiary not more than ten years, or by fine not exceeding two thousand dollars.' Acts 1918 (Ex. Sess.) c. 7732, § 1.

The purpose of the statute is to punish a male person for the act of carnal intercourse with an unmarried female person of previous chaste character, where the female person was under 18 years of age when an act was committed. The statute makes the previous chaste character of the female relate to the act of carnal intercourse for which punishment is prescribed, not to the time stated in the indictment. See Carpenter v. People, supra.

It is well settled that, while indictments for crime must generally state some time or date upon which the offense was committed, which date must be prior to the finding of the indictment and within the period when the offense would be barred by limitations, yet such time need not be stated accurately, except in those cases where the allegation of the precise time is material; and a different time from the one alleged may be proved at the trial, and it will be sufficient to sustain a conviction if such proof shows the offense to have been committed at any time prior to the indictment and within the bar of the statute, except in the cases where the exact time enters into the nature of the offense. Alexander v. State, 40 Fla. 213, 23 So. 536; Joyce on Indictments, § 311; Hume v. U. S., 118 F. 689, 55 C. C. A. 407; Ledbetter v. U. S., 170 U.S. 606, 612, 18 S.Ct. 774, 42 L.Ed. 1162.

As a general rule the precise date laid in the indictment as the time of the commission of an offense need not be proved, and there will be no variance if another day be proved, provided it be prior to the finding of the indictment and within the statute of limitations. But every indictment must on its face charge the commission of a criminal offense, including matters necessary to enable the court to impose the proper sentence in case of conviction, and in determining its sufficiency in these respects the date alleged must be taken as the true date....