State v. Haddon

• Decision Date: 03 May 1897
• Citation: 27 S.E. 194,49 S.C. 308
• Parties: STATE v. HADDON.
• Court: South Carolina Supreme Court

27 S.E. 194

49 S.C. 308

STATE v. HADDON.

Supreme Court of South Carolina

May 3, 1897

Gary J., dissenting.

Appeal from general sessions circuit court of Abbeville county; D A. Townsend, Judge.

James Haddon was convicted of rape, and appeals.Affirmed.

Walter L. Miller, for appellant.

Solicitor M. F. Ansel, for the State.

JONES J.

This case was first heard at November term, 1896, but was reheard at the present term.The appellant, James Haddon, at the court of general sessions for Abbeville county, June term 1896, was indicted and tried for rape, was found guilty and recommended to imprisonment in the state penitentiary for life.So much of the material part of the indictment as is necessary for a clear understanding of the points raised is as follows: "That James Haddon, late of the county and state aforesaid, on the 28th day of March, in the year of our Lord 1896, with force and arms, at Abbeville Courthouse, in the county and state aforesaid, in and upon one Parallee Wimbush, in the peace of God and of the said state then and there being, violently and feloniously did make an assault and her, the said Parallee Wimbush, then and there violently, against her will, feloniously did ravish and carnally know, against the form of the statute in such case made and provided, and against the peace and dignity of the same state aforesaid."The first, fifth, and sixth exceptions relate to the admission of testimony alleging error in allowing evidence of the age of Parallee Wimbush,--the first, fifth, and sixth, on the ground that the indictment did not allege that Parallee Wimbush was an unmarried woman; and the fifth on the ground that there was no allegation as to her age in the indictment.An examination of the record shows that when the solicitor asked a witness, "How old is Parallee Wimbush?"Counsel for defendant objected to the same as irrelevant, and immediately withdrew the objection "for the present," as stated.Then, when the same question was soon thereafter repeated, and the witness answered that Parallee was 13 years old, defendant's counsel again objected.The objection was not made until after the answer was given.It is not error for a circuit judge to permit an answer to be made to a question to which objection was made, but withdrawn.But, besides this, it is not necessary, in an indictment for rape, either under the common law, or under section 114, Cr. St. 1893, to allege the age of the person charged to have been ravished, nor is it necessary to allege therein whether the woman is married or unmarried, since, both at common law and under the said statute, rape may be committed upon a woman or woman child of any age,--maid or married.It will be observed that this is not an indictment for carnally knowing and abusing a woman child under the age of 10 years, which was made a felony, and punishable as rape, under section 115, Cr. St. 1893 (section 2460, Gen. St. 1882), which was amended by an act approved March 9, 1896, so as to read "fourteen" instead of "ten" years, wherein it would be necessary to allege the age of the child.The indictment alleges that the offense took place on the 28th day of March, 1896; and the evidence was to the effect that the offense was committed before 12 o'clock on the night of the 28th of March, 1896.The act approved March 9, 1896, under section 36, Rev. St. 1893, did not take effect until the 29th day of March, 1896,--the day after the crime was alleged to have been committed.This act, therefore, in so far as it makes that a crime which was not a crime before, is not applicable to this case.Whether this act, in so far as it diminishes the punishment in any case where the woman or child is over the age of 10 years, and the prisoner is found guilty, with a recommendation to mercy, can be applied to this case, will be hereafter noticed.This indictment, therefore, was not, and could not have been, brought under the act of 1896.Nor could it have been maintained under section 115, Cr. St., since the child said to have been raped was over 10 years old, and the indictment did not attempt to describe the crime therein prohibited.The indictment, then, must be referred to section 114 of the Criminal Statutes, or treated as indictment under the common law, in either of which cases it is not necessary to allege or prove the age of the victim of lust, nor whether she is married or not.But while it is not essential, under such indictment, to allege and prove the age of the woman or child charged to have been ravished, it is often quite relevant to prove the age.For example, on the issue of force to overcome resistance, or compel consent through fear, age becomes relevant, since a child of tender years would more readily yield through fear than a woman of maturer years.Such seem to have been the object of the evidence in this case, since the proof of age was brought out immediately after evidence tending to show that defendant was, at the time of the alleged crime, intoxicated, and armed with a pistol, which he exhibited.Moreover, since, under the common law, a child under 10 years is presumed incapable of consenting to sexual intercourse, it is competent, under a common-law indictment for rape, to inquire after the age of the female, on the question of consent.

The third exception alleges error in failing to charge the jury that, before they could convict, they must be satisfied from the evidence that Parallee Wimbush was an unmarried woman at the time the offense was committed.This exception must be overruled, for several reasons: First, because, under this indictment, it was not necessary, as stated above, for the state to allege or prove that Parallee was unmarried; second, to have charged this would have been to assert that rape could not be committed on a married woman; and, third, there was no request to so charge.While, under the present constitution, as under the constitution of 1868, it is the function and duty of the judge to declare the law applicable to the issues and evidence in a case, still this does not dispense with the propriety and use of a request to charge; and the omission to charge a particular point or proposition of law is not reversible error, unless the attention of the judge is called to the omission by some request to charge, or the failure to so charge is clearly prejudicial to the party complaining.

The fourth exception is as follows: "Because his honor ruled that the age of consent was fourteen years, when he should have held that the defendant was entitled to be tried under the law as it stood at the time the act was committed, the age of consent then being ten years."The record does not disclose that the circuit judge made any such ruling unless it be in his charge to the jury; and the charge, in this regard, is not excepted to.The exception is probably based on the charge of the circuit judge as follows: "Now, in this case, if you come to the conclusion that this girl is under the age of 14, *** then she cannot give her consent," etc.The judge, no doubt, had in mind section 33, art. 3, of the constitution, which is as follows: "No unmarried woman shall legally consent to sexual intercourse who shall not have attained the age of fourteen years."Hhis provision of the constitution, which took effect from and after the 31st day of December, 1895, was a part of the fundamental law of the state on the 28th day of March, 1896,--the date of the alleged crime.While, under the common law, the age of consent was 10 years, this rule was not of force in this state after December 31, 1895, except in so far as not abrogated by the constitutional provision cited.At the time of the alleged crime no maid or unmarried woman under the age of 14 years could consent to sexual intercourse.Hence it would have been error to have ruled, in accordance with appellant's view, that the age of consent at the time of the offense was 10 years.Was it error prejudicial to the defendant for the circuit judge to charge the jury, "If you come to the conclusion that this girl is under the age of 14, then she cannot give her consent?"We think not.If there was any error, it was in assuming that "this girl" was a maid; for as we have seen, the law is that no maid under the age of 14 years can consent.But it is not complained that the circuit judge, in his charge to the jury, assumed as true any fact in issue in the case.But we are not at all surprised that in his ruling as to the age of consent, as applied to that particular case, he assumed that Parallee Wimbush was unmarried.So far as appears, up to the time of the verdict, and motion for a new trial on the ground that there was no evidence that Parallee was an unmarried woman, there was nothing to suggest that there was any issue on this point.Counsel for defendant during the trial spoke of Parallee as "a girl"; "a girl as small and young as Parallee."Witnesses spoke of her as "a girl," a "child."It was proven that her name was Parallee Wimbush; Wimbush being the surname of her father, and of her mother by marriage.She was but 13 years old at the time of the trial, several months after the alleged crime.She lived in a room with her mother, grandmother, and one or more younger children, and no one else, as far as appeared in the evidence.The doctors who examined her a day or two after the alleged crime testified as to her condition.The child herself was in court, and on the witness stand.There was nothing in all the testimony to suggest that she might possibly be married, notwithstanding the many circumstances in the case demonstrating to a moral certainty that she was a child unmarried.If we had the slightest reason to believe that the defendant was prejudiced by the ruling of the circuit court in the...