Lowe v. State
| Decision Date | 25 July 1944 |
| Citation | 19 So.2d 106,154 Fla. 730 |
| Court | Florida Supreme Court |
| Parties | LOWE v. STATE. |
Rehearing Denied Sept. 15, 1944.
Appeal from Circuit Court, Lee County; George W Whitehurst, judge.
W. D Bell, of Miami, and E. M. Magaha and R. Percy Jones, both of Fort Myers, for appellant.
J. Tom Watson, Atty. Gen., John C. Wynn, Asst. Atty. Gen., and Bourke Floyd, Sp. Asst. Atty. Gen., for appellee.
The appellant, R L. Lowe, was convicted by a jury of Lee County, Florida, for the violation of Section 794.05, Fla.Stats.1941, F.S.A. He was by the trial court sentenced to the State Prison, at hard labor, for a period of five years. Section 794.05 provides that any person who has unlawful carnal intercourse with any unmarried person, of previous chaste character, who at the time of such intercourse is under the age of 18 years, shall be punished by imprisonment in the State Prison for not more than ten years, or by a fine not exceeding two thousand dollars.
It is shown by the record that the prosecutrix was born on July 14, 1931, and the trial occurred in November, 1943. The crime was alleged to have been committed on May 18, 1943. The prosecutrix was living with her mother and stepfather, Eph Wilson. We infer from a study of the record that the prosecutrix's family did not have a fixed place of abode, but lived at different places referred to in the testimony (presumably in Lee County) as the 'Moody Place', Tice, Shultie's House, Gould, Buckingham, and other places. Other children were in the Wilson family, but the prosecutrix was removed from the family about the time of the filing of the information.
The appellant is shown to have raised ten children and had relatives in Lee County and environs. His vocation or employment at the time of the alleged crime is not shown by the record. It does appear, however, that he and his wife had separated prior to the time of the filing of the information; that the Wilson family, inclusive of the prosecutrix, had lived in the same home with the appellant, or near him, at the places, or some of them, above named. The appellant when testifying at the trial stated that he was born in 1873 and therefore was 67 years of age. If he was born in 1873 and the trial occurred in 1943, he would have been approximately 70 years of age at the time of the trial. It is reasonable to assume that the appellant's age at the time of the trial was between 67 and 70.
Section 932.05, Fla.Stats.1941, F.S.A., provides that all offenses not punishable with death shall be prosecuted within two years after the same shall have been committed. See Horton v Mayo, Fla., 15 So.2d 327. The law places the burden of proof on the prosecution, upon the trial of a criminal case, to show that the commission of the offense as charged was committed within the two year period prescribed by statute. See Gomez v. Spencer, 113 Fla. 220, 151 So. 395. The presentation of an indictment or the filing of an information sufficiently commences a prosecution so as to satisfy the running of the statute of limitations. See State ex rel. Silverman v. Coleman, 139 Fla. 656, 190 So. 811. The State is not bound to the exact date alleged but the date as established must be within the two year period fixed by statute. See Hunter v. State, 85 Fla. 91, 95 So. 115.
The essential elements of this statutory crime are, viz.: (1) Carnal intercourse; (2) the person must be unmarried at the time of the intercourse; (3) the person must be of previous chaste character; and (4) the person must be under 18 years of age at the time of the unlawful intercourse. See Dallas v. State, 76 Fla. 358, 79 So. 690, 8 A.L.R. 1457; Hunter v. State, 85 Fla. 91, 95 So. 115; Thomas v. State, 105 Fla. 332, 141 So. 145; Deas v. State, 119 Fla. 839, 161 So. 729; Hand v. State, 152 Fla. 29, 10 So.2d 714.
As we study the record, no controversy exists between the prosecution and the defendant on two elements of the statutes, viz.: (1) The prosecutrix was unmarried and had never been married at the time of the alleged carnal intercourse; (2) that the prosecutrix, at the time of the alleged intercourse, was under 18 years of age. The point of cleavage between the prosecution and defense is, viz.: (3) That the prosecutrix at the time of the alleged intercourse was a person of chaste character; and (4) whether the appellant at any time ever had carnal intercourse with the prosecutrix. The burden of proof by law was cast on the prosecution to establish these two elements (donounced by the statute supra) to the satisfaction of the jury beyond a reasonable doubt. It is necessary to analyze the testimony appearing in the record on these controverted issues.
The clause in the statute, supra, 'of previous chaste character' does not mean purity of mind, nor purity of heart, but purity of body--i.e. that the prosecutrix had never sustained illicit relations with any one prior to the alleged offense with the defendant. See Hunter v. State, supra. A member of the Lee County Welfare Federation testified that on May 22, 1943, the prosecutrix was taken to her office. That she immediately took her (the prosecutrix) to a physician's office in Fort Myers and requested that she by the physician be examined. The examination was made by the physician and he was called and testified that the examination disclosed 'that there had been a penetration (of the vagina) more than one time.' On cross-examination:
The prosecution at the trial relied upon the testimony of the prosecutrix alone to satisfy an element of the statute, viz., that the prosecutrix at the time of the alleged carnal intercourse was a person of chaste character. The physician's testimony was to the effect that the hymen had been ruptured. That it was easy to rupture and could be ruptured with your fingers. 'It (the hymen) is bound to have a hole in it.' The prosecutrix testified that she had a girl friend and some boy friends and they were together occasionally. On cross-examination the prosecutrix testified:
One of the grounds for a new trial is newly discovered testimony. It was discovered or learned for the first time after the time of the trial. The new evidence is in the form of an affidavit and by reference made a part of the motion for a new trial. The affidavit set out the newly discovered testimony and is dated November 12, 1943. The verdict of the jury is dated November 4, 1943. The affidavit was made by the prosecutrix's stepfather, Eph Wilson. In the affidavit he stated that the prosecutrix, within two years prior to the date of filing the information, was not a person of previous chaste character, and the affiant recites the facts by him observed between the prosecutrix and a boy by the name of Franklin Baker; that affiant was subpoenaed in the cause as a State witness and attended court during the trial but for some reason unknown to him was not called to testify.
The evidence offered by the prosecution to establish carnal intercourse rests exclusively on the testimony of the prosecutrix. She testified to some five or six separate acts of carnal intercourse with appellant, but these separate acts are each barred by the two years statute of limitations, except the last alleged act. They were living near Tice and, she testified, 'we were at his garden near the pond.' It occurred 'about seven months ago.'
'Q. Did you know him on or about the 18th day of May this year (1943)? A. I don't think so.
'Q. When did you see him along about that time? A. I don't remember. * * *
'Q. Then do you remember how many times he had sexual relations there? A. No, sir. * * *
'Q. Well, did you have another sexual relation with him? A. I don't remember. * * *
'Q. How many times * * * was it that you had this act performed * * * in the Shultie house? A. I don't remember. * * * 'Q. Would you tell the Court and jury whether that was when you lived at Shultie's house about five years ago? A. I don't remember. * * *
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