State v. Ward

• Decision Date: 25 January 1944
• Docket Number: 15617.
• Citation: 28 S.E.2d 785,204 S.C. 210
• Parties: STATE v. WARD.
• Court: South Carolina Supreme Court

28 S.E.2d 785

204 S.C. 210

STATE v. WARD.

No. 15617.

Supreme Court of South Carolina

January 25, 1944

J G. Leatherwood and W. E. Bowen, both of Greenville, for appellant.

W A. Bull, Sol., of Greenville, for respondent.

FISHBURNE Justice.

From a conviction of the offense of statutory rape, this case is brought to this Court upon exceptions by the defendant.

Frances Evelyn Hicks, the prosecutrix, at the time the alleged offense was committed, was thirteen years and eleven months of age. She was the sole witness for the State. The defendant was 26 years old. The prosecutrix testified that the defendant induced her to go with him to his mother's home, where he introduced her to his mother and members of his family as his wife; that they had sexual relations the first night, and that she and the defendant remained at his mother's home for several days. On cross examination, Miss Hicks was asked if she and the defendant had, previous to going to his mother's home and before any sexual relations had occurred between them, presently agreed to be and become husband and wife, and if, in pursuance of this agreement, they had not entered into the relationship of husband and wife. She denied having entered into any marriage contract with the defendant.

At this point in the cross-examination, the solicitor interposed an objection upon the ground that the statute, Section 1111 1942 Code, under which the defendant was indicted, makes it unlawful to have carnal knowledge of a woman child under 16 years of age, and that a common law marriage between the prosecutrix and the defendant would be no defense. The trial Judge sustained this contention of the State, and held that a marriage, common law or otherwise, between the prosecutrix and the defendant prior to any sexual relationship would be no defense to a charge under this section of the Code. Counsel for the defendant then informed the Court that the only defense sought to be interposed to the charge in the indictment was that of a common law marriage between the prosecutrix and the defendant prior to any sexual relationship; and that the defense was prepared to produce witnesses who were present and who would give testimony tending to prove the existence of a common law marriage. The Court ruled that such evidence could not be offered to establish a common law marriage between the parties as a defense, but that such testimony might be given in mitigation, and might be considered by the jury in recommending the defendant to the mercy of the Court in the event he should be found guilty.

Under this ruling, the defendant testified that prior to the alleged offense he and the prosecutrix had presently agreed to be husband and wife, and that later, on the same day, he had taken her to his mother's home, where he introduced her to his mother and other members of his family as his wife, and where she was accepted as such. That on the following Sunday she accompanied him to church, where she was introduced to the minister as his wife. And later, in his sister's home in Belton, South Carolina, where they visited, she was introduced to his sister and her family as his wife; and that they remained there for several days. She was likewise introduced to nearby neighbors as his wife, and that at no time did she contradict this statement or object to such status. The defendant further testified that the prosecutrix lived with him as his wife for about a week, after which her father took her to his home, but that on the following day she slipped away from her father's home and returned to him. Upon learning that her father desired that a marriage ceremony be performed, the defendant procured a marriage license from the Probate Judge of Greenville County, but before the marriage could be performed under the license, the defendant was arrested on a warrant caused to be issued by the father of the prosecutrix. The prosecutrix then returned to her father's home. The marriage license referred to was introduced in evidence.

The trial Judge charged the jury in part as follows: "It is not a defense to claim or to show or to prove that there was a marriage between these parties, whether it was at common law or any other way, if she was below the age of consent, and is under the age of 14 years, which is the age fixed by statute in this State for a valid statutory marriage; *** it would be no defense for you to find there was a common law marriage between these parties."

Appellant argues that this instruction constitutes reversible error.

The common law establishes the age of consent to the marriage contract at fourteen years for males and twelve years for females, and this rule of the common law is still of force in this State, State v. Sellers, 140 S.C. 66, 134 S.E. 873; Ex parte Blizzard, 185 S.C. 131, 193 S.E. 633. Our statute (Section 8558) provides that "*** No such license shall be issued when the woman or child-woman is under the age of fourteen, or when the man or male is under the age of eighteen ***."

It will be observed that the statute does not declare that if a marriage is entered into when one or both of the parties are under the age limit prescribed, the marriage shall be void. It does, however,...