25 S.D. 49 | S.D. | 1910
One Grace Nesson applied to this court for a writ of habeas corpus directing one J. G. Miles, as sheriff of Brookings county, to make his return to the court showing by what authority he held said Grace Nesson in custody. The writ issued, the said sheriff made his return thereto, and the said Grace Nesson answered such return.
The facts herein are undisputed. The father of the applicant was upon trial before the circuit court of Brookings county upon an information charging him with having committed' the crime of rape, committed upon the person of said applicant, a girl under the age of 18 years, to wit, 15 years old. The applicant, having been called _ by the state as a witness, was sworn, and, after answering several introductory questions, was asked: “Well, now, on or about August 9th did your father have sexual intercourse with you?” The applicant answered: “I refuse to answer, for the reason that it would tend to incriminate me.” Other questions were asked having the same purport as the above; and, although the. court ordered the applicant to answer the same, she steadfastly refused, even after being warned that she by such refusal rendered herself - liable to punishment 'for contempt, her refusal each time being based on the same ground as above. The circuit court finally ordered the applicant committed to the custody of the sheriff for contempt of such court on account of her refusal to answer the questions asked. It appears from the statement of the said circuit court made to the said applicant that it was the opinion of such court that, inasmuch as the applicant was under the age of 18 years at the date inquired about, she could not be capable of committing, the crime of incest, and therefore any answer she might make could not possibly tend to incriminate her. This is the view urged before this court in support of such commitment; it being contended that the statute of this state making it a crime to have carnal knowledge of a female under the age
One needs but to consider a ■ moment the consequences that may flow from a holding supporting either view to recognize the great importance of this question. If the -applicant is right, then whenever a person is charged with rape, incest, or adultery with a female under the age of 18 years and above 7 years of age, such female, if she can be induced to close her lips to all questions, can often prevent the person charged from receiving merited punishment. And this .may result even when the state would willingly refrain from any prosecution of such female child. Under our statutes there is no provision empowering the court or prosecuting officer to grant to a witness immunity from prosecution in cases of this kind. On .the other hand, if by our statute a female under 18 years of age is, as claimed on behalf of the sheriff herein, conclusively presumed incapable of committing a sexual crime, we have -this condition in this state: A girl of 17 .years -of age, who has fallen and become a common prostitute, may lead her younger brother of 15 or 16 years of -age to have sexual intercourse with her. She remains, in the eye of the law, as pure as the driven snow. He becomes a felon, liable to punishment for either rape or incest. A man may marry a girl of less than 18 years of age; she can live in open and notorious sexual relations with other men, and flaunt her shame and -disgrace in the eyes of her husband and before the public, until she reaches 18 years of age. The husband cannot procure a divorce upon -the ground of adultery; neither has he the right to refuse her his bed, for, if he does, it would be desertion upon his part. Other illustrations could be given to show the unconscionable results that might flow from holding against the applicant herein. Unless driven to such conclusion by the clear import of the words of our statute, we certainly cannot presume our lawmakers in raising the so-called “age of consent” ever intended to render such conditions possible; ever intended, while guarding the girls of our
Turning now to section 325, Rev. Pen. Code, being the section we are called upon to interpret, and we find it reads, so far as material to this inquiry, as follows: “Rape is an act of sexual intercourse, accomplished with a female not the wife of the perpetrator, under either of the following circumstances: (1) Where the female is under the age of eighteen years.” What is there in the-wording of the above to indicate that the Legislature intended to say that a female under 18 years of age was incapable of consenting ? What the Legislature did say was virtually this: “The man shall be guilty of rape where the female is under the age of eighteen years, whether the act of intercourse is with her consent or not” — in other words, the Legislature made her consent immaterial; made that consent which, coming from a female over 18 years of age, would be a complete defense to the crime charged, when coming from a female under that age a mere nullity, so far as the man is concerned. This ¡statute does not presume to> declare that it shall be conclusively presumed that all females under 18 years of age are virtuous, or that they are mentally incapable of determining the element of right and wrong as relating to sexual acts, and therefore mentally incapable of consenting to such acts, but it declares a rule of public policy, under which, as stated above, it attempts to protect all females of immature age, and through them the public, from the consequences, not only of their lack of judgment, but lack of virtue where the same may be lacking; but it in no manner follows that the female who knowingly and willfully commits the act of sexual intercourse shall not be as liable criminally therefor as her older sisters would be for the same act.
In Nebraska it is rape for a man to carnally know a female “under the age of eighteen yeans, with her consent unless such female child * * * is over fifteen years of age and previously unchaste.” This statute clearly recognizes the legal ability of the female to consent, but renders such consent a nullity as a defense for the man. Missouri has a statute similar to Nebraska, ex
We have referred to- the evils which might flow from this holding, but it is easy for the Legislature to prevent- all danger along this line. Let it but pass an act authorizing the proper officer or officers to grant absolute immunity from punishment for any crime which the witness' evidence may tend to show her
Let an order discharging the applicant from custody issue.