Kolb v. State

• Decision Date: 02 October 1922
• Docket Number: 22657
• Citation: 93 So. 358,129 Miss. 834
• Court: Mississippi Supreme Court
• Parties: KOLB v. STATE

93 So. 358

129 Miss. 834

KOLB v. STATE

No. 22657

Supreme Court of Mississippi

October 2, 1922

1. CRIMINAL LAW. Error to admit acts of sexual intercourse subsequent to first act which completes offense of statutory rape; acts of sexual intercourse prior to act constituting statutory rape admissible.

Under chapter 171, Laws 1914, section 1 (Hemingway's Code section 1093), making it a felony for any male person to carnally know a female person of previous chaste character younger than himself, over twelve and under eighteen years of age, the offense is complete with the first act of sexual intercourse, and it is error to prove subsequent acts of sexual intercourse between the accused and the female. The relations previous to such act may be admissible, but subsequent acts should be excluded.

2 RAPE. General reputation of prosecutrix for chastity prior to act of accused admissible in statutory rape.

In a trial for the violation of the Age of Consent Law (chapter 171, section 1, Laws 1914; Hemingway's Code, section 1093), previous chaste character of the prosecutrix is material, and evidence of her general reputation as to chastity is admissible to prove or disprove her chastity, and it is reversible errer to exclude such evidence, but such general reputation must be confined to time anterior to the act of defendant.

3 WITNESSES. Prosecutrix testifying that accused violated her chastity may be impeached by showing contrary statements.

Where a prosecutrix in a case for violating the Age of Consent Law (section 1, chapter 171, Laws 1914; Hemingway's Code section 1093) testifies for the state that the defendant was guilty of violating said law, and that he was the first person to violate her chastity, she may be impeached by showing statement made to other persons that another than the defendant is the guilty one, or that she had sexual intercourse with another prior to the time fixed in her tesimony that defendant violated her chastity.

4. RAPE. Evidence of size and appearance of prosecutrix in given year admissible, as tending to show age when chastity violated.

In a prosecution under the Age of Consent Law (chapter 171, section 1, Laws 1914; Hemingway's Code, section 1093), the age of the prosecutrix is material; and it is competent to show her appearance and size when brought as a child to a community in a given year, to show probability of her age, and tending to show she was over eighteen years of age at the date of the alleged violation of her chastity by the defendant.

5. INDICTMENT AND INFORMATION. Evidence may be offered at any time within two years prior to indictment for statutory rape.

Where an indictment for violating the Age of Consent Law (chapter 171, section 1, Laws 1914; Hemingway's Code, section 1093) charges the offense to have been done January 23, 1922, evidence may be offered at any time within two years prior to said date under section 1428, Code 1906 (Hemingway's Code, section 1184); time not being of the essence within said section.

6. RAPE. Prosecutrix's reputation for chastity or specific acts of unchastity after time proven on accused inadmissible.

In a prosecution for violating the Age of Consent Law, evidence of general reputation for unchastity, nor specific acts of unchastity arising after the time proven on defendant is not admissible.

HON. R. S. HALL, Judge.

APPEAL from circuit court of Forrest county, HON. R. S. HALL, Judge.

A. E. Kolb was convicted for violating the Age of Consent Law, and he appeals. Reversed and remanded.

Judgment reversed, and cause remanded.

A. E. Kolb, R. A. Wallace and Currie & Currie, for appellant.

According to the statute under which the appellant is being prosecuted, an act of carnal knowledge is criminal or not, depending upon two things; (a) the time when, and (b) the conditions under which, the act was committed. Let us once more undertake to demonstrate by analysis of the statute and by illustration, that time is of the essence of the offense created by the statute; (a) If the act be committed before the female has passed her twelfth year, it is no offense under the statute; (b) if the act be committed after the female has passed her eighteenth year, it is no offense under the statute; (c) if the act be committed at a time when the female is married, it is no offense against the statute. And vice versa, if the same act, or similar act, should be committed after the female had passed her twelfth year and before she had reached and passed her eighteenth year, at a time when she was unmarried and before she had lost her chastity, it would be a violation of the statute.

There seems to us to be no escape from this plain and simple analysis of the statute and it is manifest that an act of carnal knowledge, to be prohibited and made criminal by the statute, must be and can be only such act as was committed at a time and under conditions which rendered the act criminal, and if this is true, and it must be from the very language and provisions of the statute, time and conditions must and do identify the criminal act. There is no decision of this court under a statute reading like this one holding that time is not of the essence of the offense. The state cites section 1184 of Hemingway's Code.

Under this statute in any case where time is of the essence of the offense, the time at which it was committed must be alleged with certainty and particularity. We emphasize that this statute does require the setting out of the true and correct time in any case where time is of the essence of the offense. And this statute does not itself prescribe or undertake to prescribe the classes of cases or the nature and character of cases in which it is not necessary to plead correctly the true time.

The statute under which the appellant is being prosecuted was approved March 18, 1914, and is chapter 171, [129 Miss. 837] page 219 of the Laws of Mississippi of 1914. On the day prior to the taking effect of this act, an act of carnal knowledge committed under the conditions fixed by the statute which rendered it criminal if committed the day after the statute was approved, would not have been a violation of any law known to the state of Mississippi. Two things follow necessarily from this (a) It is a statutory offense purely; (b) in order that the act may be identified and proved to be a crime, the correct date on which it was committed, must be alleged and proven.

Time as such is one but not the only element which enters this statutory offense which renders it mandatory for the state to plead the true and correct time and to prove the time as fixed in the indictment. There are two other essential elements of this offense which have a direct bearing upon this question, and they are these: (a) Whether the female at the time was unmarried; (b) Whether the female at the time was of previously chaste character.

The test is, whether or not in any case under the statute, time would be essential to identify the act complained of as criminal. The state cited the case of Carlyle v. State, 19 So. 207, which was tried under section 1281 of the Code of 1892, which is an entirely different statute from that in this case.

The state cites the case of McWilliams v. State, 63 So. 270, and it is another prosecution under the prohibition laws of the state of Mississippi and could not be an authority in the case at bar for the reasons stated with reference to the Oliver case.

The state cites the case of McCarty v. State, 37 Miss. 411, and this court held in that case that: "The day on which the offense is charged to have been committed, is immaterial, except in those cases where time is of the essence of the offense, or is a necessary ingredient in its description; and hence in a case not within the above exception, proof that the offense was committed either before or after the day laid in the indictment, but before the indictment was found and within the period prescribed by the statute of limitations is sufficient."

This case is an authority in support of the contention of the appellant under the statute under which the appellant is being prosecuted and under the allegations of the indictment against the appellant, time is of the essence of the offense, and is a necessary ingredient in its description.

In the case of Hardnett v. State, 5 So. 518, this court said: "The essence of the offense, is some essential element or constituent, without which it would not be an offense. Time is of the essence here because it depends upon the time when the act was committed whether it was an offense punishable by law or not."

"When," say the supreme court of Massachusetts, "the statute makes an act punishable from and after a given day, the time of the commission of the act is an essential ingredient of the offense to the extent that it must be alleged to have been committed after that day." Com v. Maloney, 112 Mass. 283.

Under the decision of this court in the Rogers Case, 72 So. 198, if the appellant did have an act of sexual intercourse with the prosecutrix in the month of April, then after that the prosecutrix was not of chaste character, and if the appellant did have an act of carnal knowledge of the prosecutrix in the month of September following, that would not be a violation of the statute.

The testimony fixing the time in September was objected to for two reasons: (a) Because it did not support the allegations of the indictment fixing the day of January 23, 1922; (b) because the testimony of the prosecutrix had already shown that the first act of carnal knowledge, if committed at all was committed in the month of April preceding, and a similar act in September following would not be a violation of the statute. The truth is that the jury became obsessed of the...