Wyche v. State

• Decision Date: 14 March 1921
• Docket Number: 21793
• Citation: 87 So. 286,124 Miss. 736
• Court: Mississippi Supreme Court
• Parties: WYCHE v. STATE

87 So. 286

124 Miss. 736

WYCHE v. STATE

No. 21793

Supreme Court of Mississippi

March 14, 1921

October 1920

RAPE. In assault with intent, state must allege and prove previous chaste character of female.

Under section 1359, Code 1906 (section 1096, Hemingway's Code) the indictment must allege and the state must prove previous chaste character of the female assaulted.

HON. S F. DAVIS, Judge.

APPEAL from circuit court of Washington county, HON. S. F. DAVIS Judge.

Ben Wyche was convicted of assault with intent to rape, and he appeals. Reversed and remanded.

Reversed and remanded.

Boddie & Farish, for appellant.

Section 1096, of Hemingway's Code, being the section on which the prosecution is based, makes the previous chastity of Clara Bailey, Jr., a material element of the crime, and this court held in the case of Frost v. State, 94 Miss. 104, that the indictment must allege the previous chastity of the female assaulted.

There is not one word of proof in this record, and there was not in the trial of this case, offered by either side as to the previous chastity of Clara Bailey, Jr., and when the evidence was closed the defendant asked the court to instruct the jury to acquit him, which instruction was refused. Then the defendant asked the court to instruct the jury that the burden was on the state to prove beyond a reasonable doubt that he assaulted the woman with the intent as charged in the indictment, and that she was of previous chaste character. This instruction was also refused.

The court gave instruction Number Two of the state which told the jury that the law presumes the prosecutrix to be of previous chaste character, and that the burden of proving that she was not of such character was upon the defendant, and "unless it was shown to your minds that she is not of previous chaste character, then you should presume, in making up your verdict, that she is of previous chaste character."

Section 1093, Rape--Age of Consent--Eighteen Years--That any male person who shall have carnal knowledge of any unmarried female person of previously chaste character younger than himself, and over twelve and under eighteen years of age, upon conviction, shall be punished either by a fine not exceeding five hundred dollars or by imprisonment in the county jail not longer than six months, or by both such fine and imprisonment, or by imprisonment in the penitentiary not exceeding five years; and such punishment, within said limitation, shall be fixed by the jury trying each case. (Laws 1914, ch. 171, in effect March 18, 1914.)

Section 1094. Rape--Age of Consent--"Chaste Character" Presumed--Burden of Proof--2. In the trial of all cases under section 1, of this act, it shall be presumed that the female was previously of chaste character, and the burden shall be upon the defendant to show that she was not; but no person shall be convicted upon the uncorroborated testimony of the injured female. (Laws 1914, ch. 171, in effect March 18, 1914.)

The presumption of previous chaste character only applies to prosecutions under section 1093 above quoted. That section refers to (1) unmarried female of previous chaste character; (2) younger than the male person charged, over twelve, and under eighteen years of age, and the maximum punishment prescribed is five hundred dollars and imprisonment in the county jail not longer than six months, or by both such fine and imprisonment, or by imprisonment in the penitentiary not exceeding five years. Section 1096, under which the appellant was indicted, fixed the maximum punishment at imprisonment in the penitentiary for life.

Under the well-established principal or maxim of the law, expressio unius est exclusio alterius, we submit that the presumption of previous chaste character does not apply to prosecutions based on section 1096, but only applies to prosecutions under section 1093. If such presumption had been intended to apply to section 1096, section 1094, would not have said in the trial of all cases under section 1 of this act (being section 1093 of Hemingway's Code) it shall be presumed that the female was of previously chaste character, and the burden shall be upon the defendant to show that she was not; but it would have read, "in all prosecutions for rape, or assault with intent to commit rape," or words of similar import, it shall be presumed that the female was of previous chaste character.

There is not such language to be found in our laws, but on the contrary, the presumption of previous chastity is expressly limited and made to apply to prosecutions under section 1093.

In those states, where, by statute, the previous character of the prosecutrix is made an issue, there is no presumption of former chastity, and the burden is on the state to prove that fact." 1 Wharton's Criminal Law (11 Ed.), p. 923, sec. 731. We ask the court's particular attention to the case of Dallas v. State, being a Florida Case, in 3rd A. L. R., p. 1457, and the annotation thereto.

We submit that the presumption of chastity conflicts with the presumption of innocence, and we are aware of what our court has said with regard to certain presumptions indulged by the law conflicting with the presumption of innocence, such as the presumption of malice arising from the use of a deadly weapon. But malice is a mental state, while chastity, in the sense in which it is used in this statute, is purely a physical or bodily state, and is susceptible of easy proof. Merely to have asked the prosecutrix in appropriate words if she was of chaste character might have elicited an affirmative response, then, and not until then, we submit would the burden have shifted to the defendant to prove her unchastity.

The overwhelming weight of authority is to the effect that previous chastity is not presumed in states where it is made an essential ingredient of the offense, as it is in this state. We think that the legislature recognized that rule of law when it specifically said that such presumption should be indulged in prosecutions under section 1093, of Hemingway's Code, Section 1096 of Hemingway's Code was enacted in 1906; the legislature knew of its existence when it enacted chapter 171 of the Laws of 1914, and the legislature had had four or five sessions since 1914 and never have the law-makers attempted to make the presumption of chastity applied to prosecution under section 1096.

H. Cassedy Holden, assistant attorney-general, for the state.

The reading of the indictment at page 2 of the record will disclose that it was drawn under section 1096, Hemingway's Code and not under section 1093, Hemingway's Code. The indictment alleges previous chaste character, and therefore no argument can be predicated upon the failure to allege this fact, as was done in the case of Frost v. State, 94 Miss. 104, 47 So. 898.

The state submitted...