State v. Brown

• Decision Date: 11 November 1899
• Parties: STATE v. BROWN.
• Court: Tennessee Supreme Court

53 S.W. 727

STATE v. BROWN.

Supreme Court of Tennessee.

November 11, 1899.

Appeal from circuit court, Marion county; Floyd Estell, Judge.

Jess Brown, alias Jess Martin, was indicted for the unlawful and carnal knowledge of a virtuous female over the age of 12 years and under the age of 16 years and 1 day. The indictment was quashed, and the state appeals. Reversed.

G. W. Biekle, for the state. W. D. Spears, for appellee.

CALDWELL, J.

The defendant, Jess Brown, alias Jess Martin, was indicted in the circuit court of Marion county for the unlawful and carnal knowledge of a virtuous female over the age of 12 years and under the age of 16 years and 1 day. On his motion the indictment was quashed, and the state prosecutes an appeal in error.

The indictment was based upon the second part of section 1 of chapter 129 of the Acts of 1893, and the motion to quash assumed the unconstitutionality of that act upon three grounds. The act is as follows:

"An act to amend section 5365 of Milliken and Vertree's Compilation of the Laws of Tennessee, being section 4614 of the Code, as amended by chapter 56, Acts of 1871, so as to raise the age of consent, as set forth in said section, to twelve years, and to prescribe punishment in the penitentiary against persons having carnal knowledge of females over twelve and under sixteen years and one day of age.

"Section 1. Be it enacted by the general assembly of the state of Tennessee, that section 5365 of Milliken and Vertree's Compilation of the laws of Tennessee, the same being section 4614 of the Code, as amended by chapter 56 of the Acts of 1871, be, and the same is hereby, amended so as to read as follows: `Any person, who shall unlawfully and carnally know and abuse a female under the age of twelve years, shall, on conviction, be punished as in the case of rape; and any person who shall unlawfully and carnally know a female over the age of twelve years and under the age of sixteen years and one day, shall be deemed guilty of a felony in all cases not falling under the statutes relating to rape, and, on conviction, shall be confined in the penitentiary not less than three years nor more than ten years; provided, that no conviction shall be had for said offense upon the unsupported testimony of the female in question; and provided, that the provisions of this act relative to females over the age of twelve years shall not apply to cases in which the defendant and the female in question occupy the relation of husband and wife at the time of such carnal knowledge; provided further, that evidence of the female's reputation for want of chastity at and before the time of the commission of the alleged offense shall be admissible in behalf of the defendant, but this proviso shall only apply when the female is over twelve years of age; provided further, that nothing in this act shall authorize or warrant a conviction where the female over twelve years of age, is, at the time and before the carnal knowledge, a bawd, lewd or kept female.'

"Sec. 2. Be it further enacted, that any parent or guardian of, or person having the charge, care, or custody of such female, or procuress, permitting, consenting to, aiding, encouraging, or abetting, or conniving at the commission of the offense or crime aforesaid, shall be deemed a principal in the crime, and punished as such under this act."

1. In the first place, the act is impeached as being in violation of the third clause of section 17 of article 2 of the constitution of the state, which is in the following words: "All acts which repeal, revive, or amend former laws, shall recite in their caption, or otherwise, the title or substance of the law repealed, revived or amended." The contention is that the present act does not, in its caption or otherwise, recite the title or substance of the law amended. This assailment is doubly met and refuted by an analysis of the present act, whereby it appears that...