Thomas v. State

Decision Date26 April 1932
Citation105 Fla. 332,141 So. 145
CourtFlorida Supreme Court

En Banc.

Error to Criminal Court of Record, Duval County; James M. Peeler Judge.

Clayton Thomas was convicted of having unlawful carnal intercourse with an unmarried female of previous chaste character under 18 years of age, and he brings error.


DAVIS J., dissenting.


Wm. J. Porter, of Jacksonville, for plaintiff in error.

Cary D Landis, Atty. Gen., and Roy Campbell, Asst. Atty. Gen., for defendant in error.



Plaintiff in error was tried and convicted in the criminal court of record of Duval county on an information charging him with having unlawful carnal intercourse with the prosecutrix, an unmarried female of previous chaste character and who was at the time of such intercourse under the age of eighteen years, section 5409, R. G. S. of 1920 (section 7552, C. G. L. of 1927). A sentence of five years in the state penitentiary was imposed, and he seeks relief from that judgment by writ of error.

It is first contended that the charge of the trial court was erroneous in that it charged the jury that, if they found from the evidence that Clayton Thomas (the plaintiff in error) did on the 6th day of July 1930, or within two years last prior to the date of the information, which was April 14, 1931, unlawfully have carnal intercourse with one Edna Anderson, an unmarried female of previous chaste character, it would be their duty to find him guilty.

The record discloses that Edna Anderson became eighteen years of age April 4, 1931, ten days prior to the date of the information. This charge was an inaccurate statement of the law in so far as it covered these ten days, but such error as it constituted was harmless because all the evidence points to the commission of the crime condemned by the statute on or about the date charged in the information, to wit, July 6, 1930. Harmless error is not a ground for reversal. Section 2812, R. G. S. of 1920 (section 4499, C. G. S. of 1927).

It is next contended that the previous chaste character of the prosecutrix was not proven.

This court has held that, in prosecutions under the statute involved here, the previous chaste character of the prosecutrix is a material element of the offense to be alleged and proven. We think that, on consideration of the whole record, this and every other element of the offense charged against plaintiff in error was alleged and proven beyond any question.

Several errors are assigned on the exclusion of evidence tending to show that the prosecutrix was a person of low morals and indulged in free and intimate or loose conduct with men.

This evidence was all properly excluded because it was indefinite as to time and terms and in other respects failed to meet the requirements of the rule for its admission.

The judgment below is accordingly affirmed.



BROWN, J., not participating.


DAVIS J. (dissenting).

I think the statute is designed to protect females who are under the age of eighteen years who possess both physical and mental purity. Andre v. State, 5 Iowa, 389, 68 Am. Dec. 708. Furthermore, the statute, as now written, is not limited to females, but applies to chaste males under eighteen years of age. See chapter 8596, Acts of 1921, which amended section 5409, R. G. S., to protect males as well as females under the age of eighteen years of previous chaste character.

At the trial the defendant produced a girl friend of the prosecutrix who testified that she and the prosecutrix had been out on 'petting' parties. The purpose of this evidence was to show that prosecutrix was a frequent participant in 'petting' parties, and therefore was not of previous chaste character as alleged. The court sustained an objection to a question by counse...

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