Kolb v. State, 93 So. 358

93 So. 358 | Miss. | 1922

Ethridge, J.,

delivered the opinion of the court.

The appellant was indicted for violating the Age of Consent Law (chapter 171, Laws of 1914; section 1093, Hemingway’s Code); the indictment charging that A. E. Kolb, on the 23d day of January, 1922, in Forrest county, did unlawfully and feloniously have carnal knowledge of one Jeanette Smith Boling, an unmarried female of previous chaste character, younger than himself, and over the age of twelve years and under the age of eighteen years.

Section 1093, Hemingway’s Code (Section 1, chapter 171, Laws of 1914), reads as follows:

“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.”

Section 1094, Hemingway’s Code (section 2, chapter 171, Laws 1914), reads as follows: “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.”

Section 1095, Hemingway’s Code (section 3, chapter 171, Laws 1914), reads as follows:

“This act shall not he construed as repealing or modifying section 1358 of the Code of 1906 (section 1092, this Code), as amended by chapter 171 of the acts of 1908, in regard to rape and carnal knowledge of females under twelve years of age.”

The testimony of the prosecutrix for the state was that she had gone a number of times to the office of Dr. Kolb, who was a dentist, for treatment, and that along- in the early part of September, 1921, on one of these visits I)i. Kolb locked the door of his office, placed her in a chair, tied her hands behind her, and had carnal knowledge of her; that she made no outcry because she did not want any scandal; that she cried and kicked and remained in the office about an hour; that when she left the office she told no one except a girl companion, because she did not want to proclaim ber disgrace. Site testified that she went back to the office about one week later, and that she had carnal intercourse with Dr. Kolb again; that on this occasion he merely persuaded her; that she went a third time about a week after the second visit and had another intercourse; that thereafter she never went alone, and never had any other relations with Dr. Kolb.

The defendant objected to the introduction of the second and third acts in evidence, which objections Avere overruled and exceptions taken. The prosecutrix testified that she was fifteen years of age and of previously chaste character. She testified that subsequently she discovered that she Avas pregnant, and Dr. Kolb sent her to a Dr. Martin, a physician, for examination, and thereafter furnished her Avith money to go to New Orleans. She testified that she came to Hattiesburg from Sontag Avhen she Avas about four years of age, and was adopted by her foster parents. She was asked, for the purpose of laying a predicate for an impeachment, if she did not make statements to named persons that Dr. Kolb Avas not the author of her ruin, but that she Avas going to lay it on him, that she liked him, and, regardless of the fact that he was not guilty, that she.Avas going to claim that he was, and also asked as to her relations Avith two named persons, and if she had not stated that those persons, each on separate occasions, were 'the ones guilty of her ruin. The court ruled that this evidence was not competent, and refused to permit the defendant to lay the predicate and to impeach the witness by showing that she did make such statements. The defendant also offered to prove that her reputation for virtue Avas bad in the community in Avliich she lived prior to the time she testified that Dr. Kolb had relations with her. The court ruled this evidence out as incompetent. The defense also offered to prove that she Avas frequently out late at night Avith other men or boys, and the court refused to permit such proof to bé made. The defendant produced evidence of at least one Avitness, who testified that the prosecutrix was above twenty-one years of age. The defendant introduced other witnesses, and offered to prove that the prosecutrix, when she was brought to Hat-tiesburg and placed with her foster parents, appeared to he seven or eight years of age. One of the witnesses so produced ivas a former mayor of the city, who carried her to her foster parents. Other witnesses were offered to testify that she was of the size and appearance of a seven or eight year old child at that time. This the court refused to permit. All of which was assigned as error, and to which rulings exceptions were timely taken. There was evidence for the defendant by one young man that prior to the date which prosecutrix alleged that Dr. Kolb had ruined her he had sexual relations with the prosecutrix.

The state in its testimony produced Dr. Martin, who testified that the prosecutrix came to his office and wanted to be examined; that while he was talking to her his telephone rang, and Dr. Kolb asked him if there was a young lady in his office to be examined; that he told him he was talking to her then, and that Dr. Kolb requested him to make an examination of her; that he did examine her, and was of opinion from his examination that she ivas pregnant; that afterwards he had a conversation with Dr. Kolb, in which he asked Dr. Kolb what had become of the young lady, and D'r. Kolb stated that she seemed to have gotten all right. The defendant sought to examine Dr. Martin, along the line as to his knowledge as a physician and his experience in the practice of medicine, if he could tell whether or not the prosecutrix had frequently indulged in sexual intercourse, if there would be a difference if she had only had three acts of intercourse, and he testified that he could, but the court refused to permit him to give his opinion upon the subject. Dr. Kolb and a young man, who testified that he was in his office during the year, each testified that the prosecutrix never came to the office alone, and that no such thing occurred in his office. The testimony for the state showed that Dr. Kolb furnished the young girl with money, while he and the young man denied this as being a fact. On the night the prosecutrix and her sister returned from New Orleans Dr. Kolb packed up his belongings and moved out of the state. Dr. Kolb testified that he moved because he made a business arrangement with his brother which was better than his practice in Hattiesburg'. There was no direct proof of the age of Dr. Kolb, and it is assigned for error that the testimony fails to show that he was older than the prosecutrix; that this is one of the elements of the offenses denounced by the statute under which he was indicted. Dr. Kolb testified that he had been, in Hattiesburg and practiced his profession there from the time he came out of the army, out of the service, in 1918, until December, 1921.

There are many circumstances and considerable evidence in the record tending to show the guilt of the appellant. The prosecutrix is corroborated practically upon every proposition as to which she testified. We are of the opinion, however, that there was error in the trial for which, the judgment of the court below must be reversed, and, this being true, we will notice some of the errors, so that the case may be properly tried on the new trial.

The offense Avhich the statute denounces is the first act of carnal knowledge of a female person coming within the description of the statute. The offense is completed with a consummation of one act. The consent of the female person between the ages of twelve and eighteen years is not material to the offense. The male person is equally guilty whether she consents or does not consent. While the relations of the male and female prior to the alleged act may be shown in evidence for the purpose of showing opportunity and otherwise corroborating the testimony of guilt at the time of the act, still when the act is completed subsequent acts .have no relation to the guilt or innocence of the- defendant. Proof of an act of this kind does not necessarily raise an inference that the parties have been guilty of any prior act. It must be noted that the defendant objected to the introduction o.f the subsequent acts.

In considering a similar statute it was held in King v. State, 121 Miss. 230, 83 So. 164, that there can be only one seduction, and that each successive act of intercourse is not an offense. The case proceeds upon the theory that the offense is complete on the first act of intercourse being completed. Thereafter the element of chastity disappears. It is the destruction of chastity that is the gist of the offense. To the same effect is Hatton v. State, 92 Miss. 651, 46 So. 708; Id., 95 Miss. 546, 49 So. 514; Carter v. State, 99 Miss. 207, 54 So. 805; Long v. State, 100 Miss. 15, 56 So. 185; and the authorities cited in these cases.

In our opinion the trial should be confined to the first act of intercourse and to evidence preceding the act throwing light upon it according to the rules of .evidence. We also think it was error for the court to exclude the evidence of the defense that the prosecutrix, prior to the time fixed by her when the offense was committed by Dr. Kolb, had a bad reputation for chastity and virtue in the community in which she lived. In King v. State, 121 Miss. supra, it was held upon a prosecution for seduction, where previous chastity was an. element to be proven by the state, that it was competent for the state to prove the general reputation of the prosecutrix for chastity as one of the elements of proof of actual chastity." In this case the court on this subject said:

“The state further introduced two witnesses in rebuttal, who testified, when asked if they knew the general reputation for chastity of the prosecutrix, that they had never bear'd her reputation questioned until her conduct here in question became known in a prosecution under this statute. The burden of proof rests upon the state to prove the three essential ingredients of this crime, and in proving the actual chastity of the prosecutrix it is competent to prove her general reputation for chastity, as one of the elements of proof of actual chastity. In the case of Carroll v. State, 74 Miss. 688, on the bottom of page 690, 22 So. 295, 60 Am. St. Rep. 539, the opinion of the court quotes from State v. Lockerby, 50 Minn. 363, 52 N. W. 958, 36 Am. St. Rep. 656, as follows: ‘General reputation must be regarded as having some relation to actual character, and goes directly to the question of the probability of her being chaste.’ ”

It is true the thing that the statute designs to protect is actual chastity, and not mere reputation for chastity, but in establishing the character of a person their general reputation, in the community in which they live as to the particular trait of character in issue is admissible in evidence, and tends to establish the issue upon that purpose. It is not exclusive, nor is it conclusive. The state may introduce, not only evidence of general reputation, but may introduce specific instances of unchastity upon that issue. A person may be chaste and still have a reputation they do not deserve. On the other hand, they may be unchaste and have a reputation for chastity in the community. The statute in the present case imposes a burden upon the defendant to show unchastity, the statute making a presumption that the female is chaste until it is attacked in some manner known to the law by the defendant. In many cases the only way the d'efendant could meet this presumption would be by proof of general reputation for un-chastity, or, in other words, a bad reputation for chastity. It would be difficult in many cases to get proof of specific acts, because but few witnesses would be willing to come forward and testify to specific acts.

We also think it was error for the court to hold that the prosecutrix could not be impeached by her statements, made to other persons out of court, contrary to- her testimony in court. If a witness testifies to a thing on the witness stand, being a material issue, the credibility • of such witness may always be impeached by showing that such witness made contrary statements in reference to such fact at other times and places. The testimony for the state Avith reference to the actual act depended Avholly upon tlfe testimony of prosecutrix. It is time she was corroborated as to such evidence, but Avithout the aid of her testimony it is difficult to see hoAv the case could be maintained. If she stated to other persons that the defendant was not guilty, hut that she was going to lay it on him, this would materially affect her credibility. It is true her statement would not establish as a fact the guilt of the parties named, or either of them, but it was material as going to the credibility of the chief witness for the prosecution, and might of itself, if the testimony of the impeaching witness was believed, raise a reasonable doubt of the appellant’s guilt.

The age of the prosecutrix was a material matter in the tidal of this case. If she was oyer the age of eighteen the offense charged could not be made out. It was therefore competent to establish her age by any competent testimony for that purpose. The age of children may be determined with reasonable accuracy from their size and appearance. Certainly size and appearance in children are facts tending to establish their age. It is not as precise and definite as the testimony of witnesses having knowledge, but nevertheless it is a test in judging people’s ages. People invariably judge the ages of people they have not known through life by appearance and aspect. If the child was brought to Hattiesburg in 1908 or 1909, as some of the witnesses offered testified, and appeared to be seven or eight years of age, judging from size and appearance, it would certainly be. unreasonable to assume that such child was only four years of age, as testified to by the prose-cutrix and other state witnesses. The evidence, taken in connection with the other evidence for the defendant, might have raised a reasonable doubt upon this proposition, or,, if believed by the jury, might have overturned the testimony of the prosecutrix and other state witnesses.

We think it was also error to exclude the evidence sought to be elicited from Dr. Martin by the defendant as to his professional judgment as to whether the prosecutrix had frequently indulged in sexual intercourse prior to his examination.

There is another question we will notice, and that is the contention of the appellant that the state was confined to tbe date charged in the indictment, and that proof as to other times was unlawful. The indictment charged that the act took place on .January 23, 1922, and it is contended that this is a case when time is of the essence of the offense, and for that reason the state could not prove the act on any other date than that charged in the indictment. Section 1428, Code of 1906 (Hemingway’s-Code, section 1184), reads as follows:

“An indictment for any offense shall not be insufficient for omitting to state the time at which the offense was committed in any case where time is not of the essence of the offense, nor for stating the time imperfectly, nor for stating the offense to have been committed on a day subsequent to the finding of the indictment, or on an impossible day, or on a day that never happened, nor for the want of a proper or perfect venue.”

We do not think that the time charged in the indictment in this case takes it out- of this section. In other words, under this section the state was permitted to prove any day anterior to that charged within the two-year statute of limitations, but when the state has elected to prove one date on which the offense occurred, it must then stand upon such date, and can only introduce one act of sexual intercourse in making out its case.

There were efforts in the trial of the case to show conduct on the part of the prosecutrix subsequent to the date Dr. Kolb was charged with having ruined her, but we think it was wholly immaterial how vicious she may have become subsequent to that date. A girl, may, in many instances, become absolutely depraved and go to the very bottom of the scale of human existence. The thing the statute is designed to prevent is the starting of girls upon an evil course. It imposes restraints upon all male persons to respect the chastity of a female under eighteen years of age, and a person violating this statute cannot point to the evil career subsequent to the act as a justification or in mitigation of his offense. The period of life of female persons covered by the statute is one where temptation should be as far as possible removed until the mind becomes both strengthened by reason and virtue so as to prevent running into temptation of this kind. We desire to say, in conclusion, that it is important in all criminal trials that the rights of an accused person he observed, and that his guilt, if he is guilty, be established in the manner required by law. This involves no sympathy for the wrongdoer or wrongdoing, but it is for the protection of the innocent against the hardships that sometimes come to the innocent. It is certainly desirable that guilt be punished, but it is also desirable that the rules of law founded in the wisdom of the ages be adhered to. We do not think appellant was fairly tried under the hules of law, and for this reason the judgment will be reversed, and the cause remanded for a new trial.

Reversed and remanded.