113 Neb. 87 | Neb. | 1925
From a coviction for rape upon a previously chaste 17 year-old female child, with her consent, plaintiff in error (hereinafter called defendant) prosecutes error;
Error is assigned because the indictment failed to charge that defendant was a male person. Instead, it charged that he was a married person over the age of 18 years, etc. It is evident that a clerical error was made in drawing the indictment. Defendant was before the jury. The evidence disclosed th t he was a male person, and the court instructed the jury that it must find from the evidence that defendant was a male person over the age of 18 years.
Conceding that the indictment was faulty in not describing the defendant as a male person in substantially the language of the statute, we fail to perceive how he was prejudiced thereby. That he was at the time a male over 18 years is conceded. Under section 10186, Comp. St. 1922, any error complained of, which does not cause a substantial miscarriage of justice, should be disregarded.
Defendant insists that the evidence shows that prosecutrix was unchaste previous to the time of the alleged offense. The evidence as to previoús unchastity is the direct testimony of the defendant to previous illicit intercourse with prosecutrix in another county, and inferences that might be drawn from letters written by prosecutrix previous to the time of the alleged offense. These letters, which were admittedly written by prosecutrix, are not such as would be written by a pure-minded maiden. They teem with vulgarity and immodest expressions, but contain no direct admissions of former illicit intercourse. Prosecu
This brings us to the most serious question presented in the record. The trial court refused to give an instruction requested by defendant which, in effect, told the jury that if they believed from the evidence that prosecutrix, prior to the time of the alleged intercourse set forth in the indictment, had sustained unlawful sexual intercourse with defendant in another county, then prosecutrix was not chaste at the time set forth in the indictment, and defendant should be acquitted. Instead, the court, after giving a correct abstract definition of a chaste female, instructed the jury:
“And in this case, if, from the consideration of all the evidence in the case, you believe that Grace Ramel, prior to the time of the offense charged in this indictment, had had unlawful sexual intercourse with any other person than the defendant or if, upon consideration of all the evidence in this case, there is a reasonable doubt in the mind of the jury as to whether she was chaste previous to said time, then you should give the defendant the benefit of such doubt and say by your verdict that he is not guilty.”
Whether, in a prosecution for rape upon a female child between the ages of 15 and 18 years, previous acts of illicit intercourse with the defendant are a defense, is a question upon which the decisions of this court are not entirely harmonious. In Bailey v. State, 57 Neb. 706, a chaste female, within the meaning of section 9551, Comp. St. 1922, is defined as “one who has never had unlawful sexual intercourse with a male prior to the intercourse with which the prisoner stands indicted.” It was further held in that case that the object of the statute was to protect those girls who are undefiled virgins, and that a female over 15 years
In Nabower v. State, 105 Neb. 848. which was a prosecution for rape upon an alleged chaste female between the ages of 15 and 18 years, the Bailey and Blair cases are cited, and it is held: “In such an action proof that the defendant, on the day previous to the act charged, had committed a similar act upon prosecutrix is not available to him to show that at the time of the act charged prosecutrix was not a chaste and virtuous character, since the defendant is precluded from setting up his own crime to avoid the application of' the statute.” In that case it appeared from the evidence that the intercourse previous to that charged in the information occurred on the previous day, in the same county, and in the same building. While the holding was
In the instant case, the parties were both residents of Richardson county and, so far as the evidence discloses, they had never been together in Nemaha county until the day on which the offense was charged to have been committed. It is evident that the defendant could not be prosecuted in Nemaha county for an act which occurred in Richardson county. Under the rule announced in Nabower v. State, supra, if the defendant, at the time and place alleged in the indictment, carnally knew the prosecutrix, he was guilty of rape, and if at the same time and place any other man than defendant had so carnally known prosecutrix, he would not be guilty of rape. Why? Because she was not then chaste. Can it be said that as to all the world but one she was unchaste, but as to the one she was chaste? Chastity of a female has reference to her condition. If she has not been voluntarily previously defiled, she is chaste. If she has been previously voluntarily defiled, she is no longer chaste. If the evidence of defendant is true, she was not chaste at the time the criminal act is alleged to have occurred.
In State v. Patterson, 88 Mo. 88, in the course of the opinion, it is said (p. 96) : “Evidence of prior specific acts of unchastity with the defendant himself is now universally received, as well in cases of seduction as in cases of
In People v. Nelson, 153 N. Y. 90, in which the defendant was charged with seduction upon a female of previously chaste character, many acts of intercourse between the parties were testified to as occurring prior to the offense charged in the indictment. It was held that the conviction could not be sustained, upon the ground that, having indulged in frequent sexual intercourse with the defendant, the complaining witness was on the day charged not an unmarried female of previously chaste character.
. State v. Dacke, 59 Wash. 238, 30 L. R. A. n. s. 173, was a prosecution for rape wherein the evidence showed previous acts of intercourse between the defendant and the prosecutrix. It was held that the prosecutrix was not then a female child of previously chaste character. This ruling was somewhat modified in the subsequent case of State v. Sargent, 62 Wash. 692, 35 L. R. A. n. s. 173.
In 22 R. C. L. 1190, sec. 22, it is said: “The object of these acts being to protect virtuous maidens, it is held that it is not a crime thereunder to have intercourse with a woman within the prescribed ages who has theretofore had sexual intercourse, and that the fact that she was first deprived of her virginity by the prisoner does not strengthen the state’s case; but such prior unchastity is a complete defense, provided such prior act was not punishable in the jurisdiction and at the time the act charged was committed.”
We are of the opinion that in a prosecution of this kind, if the evidence shows previous acts of illicit intercourse between the prosecutrix and defendant in another jurisdiction,^ conviction cannot be properly sustained. If we are right in this conclusion, then the instruction requested by defendant, or one similar to it, should have been given, and
Defendant contends that the testimony of prosecutrix is not sufficiently corroborated to justify a conviction. We do not deem it necessary to set out the evidence, but suffice it to say that a careful consideration leads us to the conclusion that there was sufficient evidence in that respect on which to found the verdict. There are other assignments of error which, in view of the conclusion that we have reached, it seems unnecessary to consider.
Because of the error in the giving and refusal of instructions, as pointed out in the opinion, the judgment of the district court is reversed and the cause remanded for a new trial.
Reversed.