State v. Dacke

• Decision Date: 30 June 1910
• Citation: 109 P. 1050,59 Wash. 238
• Court: Washington Supreme Court
• Parties: STATE v. DACKE.

109 P. 1050

59 Wash. 238

STATE v. DACKE.

Supreme Court of Washington

June 30, 1910

Department 1. Appeal from Superior Court, Kittitas County; Ralph Kauffman, Judge.

Adolph Dacke was convicted of statutory rape, and he appeals. Reversed and remanded, with instructions to dismiss.

Pruyn, Streff & Hoeffler, for appellant.

E. K Brown and O. O. Felkner, for the State.

MORRIS J.

Appellant was convicted of the crime of rape, and appeals from the judgment entered.

A number of errors are assigned, but we will refer to only one which in our opinion is decisive of the appeal. The Criminal Code of 1909 amended the law relating to rape; among other changes making it a crime to carnally know a female child between the ages of 15 and 18 years and of previous chaste character. Rem. & Bal. Code, § 2436. Appellant was informed against under this new section; the charge being laid in Kittitas county, and the time as June 30, 1909. The state's evidence discloses that prosecutrix, who was then 17 years old, and the appellant first became acquainted in Snohomish county, some time in October, 1908; that in the following November they began having sexual relations, with the full consent of prosecutrix; and that these relations were indulged in whenever opportunity afforded, until the following March, when prosecutrix with her family moved to Kittitas county. In May appellant went to Kittitas county and renewed his acquaintance with prosecutrix, and they again assumed their sexual relations, until July 8th, when appellant was arrested and charged with an offense occurring on June 30th. At the close of the state's case, the prosecutrix having testified to these facts, concerning her relations with appellant, his counsel moved for a directed verdict of acquittal, which being denied, he excepted, and now alleges error in the court so ruling.

In construing the statute involved in this information, every requirement must be given effect as constituting an essential element in the offense created. The requirement that the female against whom the offense is committed shall be of 'previously chaste character' was unknown to the common law, nor was it an ingredient of any statute of this state defining rape, until the act of 1909. When, therefore that act went into effect on the 8th day of June, 1909, it brought within its protecting terms a theretofore--so far as this crime is concerned--unknown requirement, that of previous chastity. The carnal knowledge of a female child between the ages of 15 and 18 years with her consent, under the old law, constituted rape; but under this act of 1909, under which this information lies, such carnal knowledge is not a crime unless the female child be of 'previously chaste character.' The act includes within its terms one female child and one male, and since the male person cannot commit the offense described in the statute except upon the female child described in the statute, it follows that, as to the male person charged with the crime, the female child must be 'of previously chaste character,' not alone as to some other man, nor only as to all other men, but to the particular man named in the information. The female child named in this information having testified to voluntary sexual relations with appellant many times prior to June 30th, she was not on that day within the protection of the statute, in that she was not 'of previously chaste character.' The term 'of previously chaste character' means the same in law as in morals. It describes a condition of sexual purity. It means a female who has never submitted herself to the sexual embrace of man, and who still retains her virginal chastity. It is defined as 'chaste in fact when seduced,' in Hussey v. State, 86 Ala. 34, 5 So. 484; as 'actual personal virtue,' in State v. Patterson, 88 Mo. 88, 57 Am. Rep. 374; Lyons v. State, 52 Ind. 426; Kenyon v. People, 26 N.Y. 203, 84 Am. Dec. 177. 'A chaste female is one that has never had sexual intercourse, who yet retains her virginity. A virtuous female is one who has not had sexual intercourse unlawfully, out of wedlock, knowingly and voluntarily.' Marshall v. Ter. (Okl. Cr. App.) 101 P. 139. Whatever may be the language which one may choose to define a female of previously chaste character, it certainly cannot be contended that one who, moved by lewd desire and libidinous impulse, submits herself to the carnal embrace of a man from November to July whenever the time and the place are opportune, is a female of such a character on the 30th day of June.

It is argued by the state that, as to the appellant, the prosecutrix is exempt from this requirement of the law; that being the author of her undoing, he cannot take advantage of his own wrong and hide himself under the cloak of this statutory requirement, as a shield for his protection. Such an argument is purely a sentimental one, and, although it may be abhorrent to the moral sense to permit a man to protect himself with the shield of his own wrong, we are dealing with a legal question, and not one of sentiment nor morals; and, in order to find a man guilty of such an offense as the one named in this information, we must first find a female who can in all its essentials measure up to the requirement of the law charged to be violated. The test of virtue in a woman is a personal and physical test, and when, by reason of her voluntary sin, she has lost her virginal purity, it matters not who contributed to that loss; she is no longer chaste. It is not a sound argument to say that the prosecutrix in this case was immune from rape as to all other men, but not from appellant. The statute makes no such distinction; neither can we. As is said in Shirwin v. People, 69 Ill. 55:...