Norman v. State

• Decision Date: 11 May 1921
• Docket Number: (No. 6175.)
• Citation: 230 S.W. 991
• Parties: NORMAN v. STATE.
• Court: Texas Court of Criminal Appeals

230 S.W. 991

NORMAN v. STATE.

(No. 6175.)

Court of Criminal Appeals of Texas.

May 11, 1921.

Appeal from District Court, Reeves County; Chas. Gibbs, Judge.

E. A. Norman was convicted of rape, and appeals. Reversed.

Ben Palmer, of Pecos, R. D. Blaydes, of Ft. Stockton, and Hudspeth, Wallace & Harper, of El Paso, for appellant.

R. H. Hamilton, Asst. Atty. Gen., for the State.

MORROW, P. J.

The offense is statutory rape; punishment fixed at confinement in the penitentiary for 20 years.

The statute, as it relates to the present prosecution, defines the offense thus:

"Rape is * * * the carnal knowledge of a female under the age of eighteen years, other than the wife of the person, with or without her consent, and with or without the use of force, threats or frauds. Provided, that if the woman is fifteen years or over, the defendant may show in consent cases, she was not of previous chaste character as a defense." Acts of the Thirty-Fifth Legislature, Fourth Called Session, c. 50.

This statute changed the definition of statutory rape, which previously fixed the limit of the age of consent at 15 years, and contained no proviso. In the instant case, the prosecutrix was over 15 years and under 18 years at the time the offense was charged to have been committed. There was evidence introduced that before the prosecutrix reached the age of 15 years, she had had carnal intercourse with the appellant and with other persons.

The court instructed the jury that the fact that she had had "intercourse with other men prior to her arrival at the age of 15 would constitute no justification of the offense." He refused to instruct the jury upon the request of appellant, in substance, that if, at the time of the alleged offense, she was over 15 years of age and was not of "previous chaste character, to acquit the appellant." In an appropriate manner, these rulings are complained of and brought up for review.

That part of the statute declaring that in cases of consent where the woman is over 15 years of age, the defendant may show "she was not a previous chaste character as a defense" would seem to require no interpretation.

The Legislature apparently has selected appropriate language in which to declare that in such a case, the prosecutrix being over 15 years of age when the act was committed, and the proof showing that she was of previous unchaste character, no conviction can result. These facts, being established by the evidence and found to be true by the jury under suitable instructions, bring into operation the statute which protects the accused and bars the state.

The use of the word "defense," as defined by lexicographers and the courts, it would seem, precludes any meaning of the statute other than this. Words and Phrases, Second Series, vol. 1, p. 1269.

A "chaste woman," within the meaning of the law as applied to an unmarried woman, signifies one who has had no carnal knowledge of men. Cyc. of Law & Proc. vol. 6, p. 978; Words and Phrases, Second Series, vol. 1, p. 652; State v. Kelley, 191 Mo. 680, 90 S. W. 834; Kerr v. United States, 7 Ind. T. 486, 104 S. W. 809; Marshall v. Territory, 2 Okl. Cr. 136, 101 Pac. 139.

An "unchaste," unmarried woman is one who has had carnal knowledge of men, within the meaning of the statute. State v. Dacke, 59 Wash. 239, 109 Pac. 1050, 30 L. R. A. (N. S.) 173; Woodruff v. State, 72 Neb. 815, 101 N. W. 1114; Bailey v. State, 57 Neb. 706, 78 N. W. 284, 73 Am. St. Rep. 540; State v. Sargent, 62 Wash. 692, 114 Pac. 368, 35 L. R. A. (N. S.) 173.

In all instances coming to our attention in which the law recognizes as a defense to the charge of statutory rape the fact that the character of the female was unchaste, evidence of the want of chastity prior to the time she attained the age of consent is available. Ruling Case Law, vol. 22, p. 1190, § 22.

In Nebraska, the statute (Comp. St. 1911, § 7643) reads thus:

"If any male person, of the age of eighteen years or upward, shall carnally know or abuse any female child under the age of eighteen years, with her consent, unless such female child so known and abused is over fifteen years of age and previously unchaste, every such person so offending shall be deemed guilty of rape."

Construing this statute, the Supreme Court of Nebraska, in Bailey v. State, 57 Neb. 710, 78 N. W. 285, 73 Am. St. Rep. 543, held the evidence insufficient to sustain the conviction. The court said:

"The statute does not punish men for unlawful sexual relations with a prostitute over fifteen years of age, nor for such relations with a female who, though not a prostitute, has already submitted herself to the illicit embraces of a male capable of performing the copulative act."

Upon the same subject, discussing a similar statute concerning seduction, the point being made that the female was unchaste because of acts committed while she was below the age of consent, as used in defining rape, the court said:

"Her favors might be common to all, yet she would be chaste by operation of law. Impure in fact, she would be pure by statute. * * * We do not think that the Legislature meant constructive chastity when it said previous chaste character, but that it meant chastity in fact, according to the popular sense of that word. Character pertains to the person, and is the distinguishing mark of what the person is. It is not founded on presumptions of law, but on good conduct." People v. Nelson, 153 N. Y. 90, 46 N. E. 1042, 60 Am. St. Rep. 596.

The statute of this state in question was manifestly framed to preserve the purity of females under 18 years of age and to refrain...