State v. WhitenerState v. Whitener
At the December, 1953, term of the Court of General Sessions for Richland County, appellant was indicted on three counts, the first charging rape, the second charging carnal knowledge of a woman child under the age of fourteen and above the age of ten years, and the third charging him with aiding and abetting another in the carnal knowledge of the same child within a few hours after appellant had raped her.
On December 14, 1953, appellant gave notice of a motion for change of venue, upon the ground that because 'of the unfavorable publicity that had been given to the charges against him in the press, on the radio, and otherwise, he •could not obtain a fair and impartial trial in Richland County. The motion was heard on December 16, 1953, and refused. He then moved for a continuance upon the following grounds:
(1) That, as disclosed by the affidavits in support of the' motion for change of venue, he could not at that time obtain a fair and impartial trial; (2) That the cause would require from three to five days for trial and would therefore not be concluded until a day or two before Christmas, which would be unfair to the defendant; (3) That his counsel had received information to the effect that there were two or three persons, living without the State, who might be material witnesses; and (4) That the solicitor had signed the indictment on the sheet containing the third count, and that the third count, which would thus necessarily have to be in the hands of the jury along with the first two, was such as to be prejudicial to the defendant. This motion was heard on December 16, and refused.
On December 17, when the case was called for trial, appellant’s counsel moved for a continuance upon the ground-that appellant was so ill that his life would be endangered if he were forced to trial at that time. In support of the motion, his physician, Dr. A. W. Welling of Newberry, South
At the call of the case for trial on December 21, appellant’s counsel again moved for a continuance on the ground that he was too ill to stand trial. After consideration of affidavits of Dr. A. W. Welling and Dr. B. M. Montgomery, submitted in support of the motion, the court again sent the two county physicians to Newberry for the purpose of examining him; and upon their return they testified on the afternoon of the same day that his temperature was less than one degree above normal, and that they had found no evidence of virus pneumonia, pneumonitis, or any condition that in their opinion would make it dangerous to his life or health to stand trial at that time. The motion for continuance was then refused and the case ordered for trial on December 22, 1953.
■ Upon the call of the case for trial on the morning of December 22, appellant’s counsel stated that appellant was in the court house, but was having a, chill and high fever. The county physicians were again called and, after having examined him, testified that his temperature was perfectly normal and that he was, in their opinion, able to face trial. Appellant was then called to the witness stand by his counsel, and testified that he had had a severe attack of chills and fever the day before, and had had a “weak spell” a few minutes before. His wife was also sworn and testified that he had had a chill while at the hospital the afternoon be
Appellant moved:
1. To quash the indictment, upon the ground that' it charged entirely distinct offenses;
2. To require the state to elect on which of the three counts it would go to trial; and
3. To strike the third count as charging an offense not forming a part of or connected with those set forth in the first two counts.
The motion to quash was refused, and the motion to require election was granted. Thereupon the state elected to go to trial on the first count. Appellant’s counsel then stated that they desired to go to trial on counts one and two, and that count three be stricken out, whereupon, and at their request, it was so ordered.
The trial began at 2:30 p.m. on December 22; the taking of testimony was completed on December 23; and the case went to the jury at 11 :35 a.m. on December 24. At 1:30 p.m. the jury returned, requesting clarification of the difference between count one and count two of the indictment; and having received instructions in that regard, they retired, and at 1:50 p.m. on December 24, 1953, returned a verdict of “Guilty of rape, with recommendation to the .mercy of the court.” A motion for a new trial was thereafter made and refused and appellant was thereupon sentenced to serve a term of fourteen years in the South Carolina Penitentiary or a like term upon the public works of Richland County. He now appeals to this court on numerous exceptions, which will be hereinafter discussed.
Pending the hearing of the appeal, appellant gave notice that he would move before this court for an order suspending the appeal and transferring the cause to the Court of General Sessions for Richland County for the purpose of
The prosecuting witness, eleven years old, lived with her mother, her fourteen year old brother, and her step-father, a painter, on Jones Street, in the eastern part of the City of Columbia, whither they had moved from West Columbia some two weeks before September 17, 1953, the date of the alleged offense.
Appellant, a lumber manufacturer, forty-nine years of age, and married, lived in Newberry, South Carolina. He had known the prosecuting witness and her family for about two years, his first acquaintance with them having occurred in connection with the painting of a house for him; had visited them at their home in West Columbia; and, when they were preparing to move to the Columbia address, he had, at the request of the prosecuting witness’ mother, driven in company with the prosecuting witness and another member of the family to see the new location.
The prosecuting witness testified, in substance, as follows:
On the afternoon of September 17, 1953, while she was waiting to catch a bus to go on an errand for her mother to a laundry in West Columbia, appellant drove up in his car and offered her a ride. He took her to Hunter’s Motor Court, went to the office, and, having gotten a key to cabin No. 3, drove there, and in spite of her remonstrance, took her by the wrist and made her go in with him. He locked the door, offered her a drink of whiskey, which she refused, and then told her to take off her clothes. She refused, and he “took them off for me,” and then “he told me to go lay in the bed, and I did, and he took off his clothes,” and proceeded to have sexual intercourse with her. She testified that when he started to get on top of her “he put my hands behind my head and kept trying to mash down, and I told
The testimony of the prosecutrix was substantially corroborated by that of Sharpe and Coleman, both of whom testified also that when they went into the room the bed was in disorder, and that appellant stated to them that he had already had intercourse with her. Each of these boys gave his age as sixteen years.
They left the motor court between 9:00 and 10:00 o’clock that evening, and appellant drove back to the drug store, where Sharpe and Coleman got out. He was driving the prosecutrix to her home when he was stopped by a city patrolman who, under orders from headquarters, was on the lookout fon this car. Appellant was taken to police headquarters in a police car and the prosecutrix was taken there in appellant’s car by police officer Derrick. As Derrick was getting out of the car at headquarters, there fell out of the car a key, to which was attached a plastic tag bearing the inscription “Hunter’s Motor Court, 2322 Two Notch Road, Columbia, S. C., 13.” Later that evening, having placed appellant in .jail and having talked with the prosecutrix, De
Rawlinson testified that upon his return from the motor court to police headquarters he told appellant what he had found and discussed the matter with him at length in the presence of another member of the police force, Mr. Shealey. To quote from Rawlinson’s testimony:
“I talked with him, and Mr. Shealey was present, and he made the statement that the bed was messed up, but that he didn’t do all that himself; that somebody else had a part in it, and I told him that the charge was straight rape, and die said, ‘That’s awful severe, pretty rough,’ and I said, ‘Well, that’s what it looks like to me, and I am trying to be fair to you.’ He said, ‘Well, I am guilty of carnal knowledge or contributing to juvenile delinquency’.”
E. A. Shealey, who was present during the conversation between Rawlinson and the appellant, testified: “H¿ said he wouldn’t plead guilty to rape. Chief Rawlinson asked him about the rape, and he said he wouldn’t plead guilty to rape, but that he had been with the little girl.”
Appellant testified, in substance, as follows :
On September 17 he drove from his farm in Jasper County to Columbia, bringing some venison to give to the family of the prosecutrix. He arrived at their home between 4:30 and 5 :00 p. m., visited with them for fifteen or twenty minutes, and then left to go to West Columbia, where he had a business appointment with a man named John L. Baker, who was to meet him at Hunter’s Motor Court at 5:30. He also was going to the Van Lott Company’s place of business in West Columbia to see about replacing a wornout tractor clutch. As he was about to leave, the prosecutrix came out to his car and said that her mother wanted her to go to West Columbia to get some laundry, and that she would go with him. He drove first to Hunter’s Motor Court, where he asked Mr. Hunter if he had received a phone call for him and if Mr. Baker had reserved a room. Receiving a negative answer, he told Mr. Hunter that he would take a room in Baker’s name, wdiich he did After
Mr. Ferris Hunter, the owner and operator of Hunter’s Motor Court, testified that he had rented Room 3, his last vacancy, to appellant at some time between 5 :00 and 7:00 o’clock on the afternoon of September 17; that his own house was some thirty feet from Room No. 3; that after renting Room No. 3 to appellant, Hunter stayed in the office of the motor court for about half an hour and then went to his house, where he remained for about three quarters of an hour shaving and bathing, during which time he heard' nothing, although his window of the bathroom was open. He returned to the office, stayed there about half an hour, and left the motor court about 8:30 or 8:45 p. m., returning about 10:00 p. m. No complaint was made to him by any guest of the motor court. When appellant first came into Hunter’s office, he asked if John L. Baker had been there. While appellant was in the office the telephone rang, and Hunter answered it. The person calling asked if appellant was there, and Hunter then handed the phone to appellant, who talked with the other party.
Dr. A. W. Welling, appellant’s personal physician, testified that he examined appellant at the jail about 1:00 or 2:00 a. m. on September 18; that he saw no evidence in the way of bruises or otherwise that would indicate recent sexual intercourse.
The following evidence was adduced by the State in reply:
H. B. Sharpe, recalled, testified that he saw appellant take off his undershirt after appellant and the witness and Coleman and the girl had gone into the room at the motor court.
James B. Coleman, recalled, testified that he also saw appellant take off his undershirt; that during the entire time that he and Sharpe and the girl were in the bedroom appel
The prosecutrix, recalled, denied that she had asked appellant to take her to look for any boy friends; and she corroborated Coleman’s testimony to the effect that appellant was in the bedroom during all the time that she and the two boys were there.
The motion for suspension of the appeal and transfer of the cause to the lower court for the purposes of a motion for new trial on after discovered evidence was based upon:
1. An affidavit of M. B. Tucker, a prospective juror who, upon the drawing of the jury for the case at bar, had been acceptable to the State but was not accepted by the defense; and
2. An affidavit by the prosecutrix repudiating her testimony at the trial.
Following is the substance of Mr. Tucker’s affidavit:
In 1933 he was engaged in business in Newberry, Laurens, Sumter and Clarendon counties as wholesale and retail dealer for the Pure Oil Company; and in that year he established his residence in Newberry, where he operated a filling station and a bulk plant. Here he became acquainted with appellant, who was a substantial customer, and, while they were not close friends, their business and social relations were cordial. In the latter part of the same year, 1933, Tucker sold his business in Newberry and Laurens counties and moved to Sumter, South Carolina, where he lived for two years. In 1935 he moved to Columbia, where he has resided ever since. In September, 1953, having read in the newspaper of appellant’s arrest, he visited him at the jail, carrying him some fruit, and talked with him there for some thirty or forty minutes. At the trial in December he was accepted as a juror by the State but rejected by appellant, who apparently did not recognize him although he was standing within four or five feet. After the trial Tucker saw appellant in the jail and asked why he had been rejected
This affidavit furnishes no sufficient basis for the motion. It will be recalled that when the case was called for trial appellant moved for continuance upon the ground of illness, and under the court’s order he was then and there examined by two physicians, who pronounced him physically able to stand trial. The presiding judge thereupon ordered the trial to proceed; and there is nothing in the record of appellant’s testimony to suggest that he was not in full possession of his faculties. It does not appear from the affidavit that Mr. Tucker maintained contact with the appellant, either in business or socially, after 1933, when Mr. Tucker left Newberry. For all that the affidavit discloses, he never saw appellant again until September, 1953^ when he visited him in the Richland County jail, Iqjg conversation with him in the same jail after the trial must have taken place not later than March 30, 1954, when appellant was released on bond. The- incident related in the affidavit must, therefore, have been known to appellant as well as to the affiant some six months prior to September 29, 1954, the date of the affidavit and of the motion for transfer of the cause.
The affidavit of the prosecutrix is to the effect that on the night of the arrest she was.forced by Detective Rawlinson, under threat that she would be kept in jail, to sign a false statement incriminating the appellant; that when they took her home that night she told her mother that she had told the police that appellant hadn’t bothered her; that a few days later she was taken before a magistrate in the solicitor’s office, and then taken to the South Carolina Industrial School for White Girls, where she stayed until after the trial; that every night, after all the other girls had gone to bed, she was required by her matron, Mrs. Kinlaw, to study “what they had written for me to say in court”; that whenever she cried her teacher would slap her face; that
The averments of this affidavit are thoroughly and convincingly refuted by affidavits of Detective Rawlinson, Detective Fulmer, Officer R. A. Shealey, Magistrate Cal M. Lawson, Mrs. Florence S. Mertz, Superintendent of the South Carolina Industrial School for Girls, Miss Kinlaw, one of the matrons of said school, E. M. Súber, of the South Carolina Law Enforcement Division, Mr. John W. Foard, Jr., Assistant Solicitor, and Mr. T. P. Taylor, Solicitor of the Fifth Judicial Circuit, and an affidavit of a married sister'of the prosecutrix. It is unnecessary to review these affidavits' in detail. From Solicitor Taylor’s affidavit it appears, among .other things, that a day or two after the arrest he. called, in company with Detective Rawlinson, at the home of the child’s mother, and the prosecutrix then and there in her mother’s presence related in detail what had occurred, substantially as she later testified; that the solicitor then suggested to the mother that in the interest of the child and of society the child should be placed in some institution until the case was ended, to which the mother agreed; that on September 25, 1953, the mother brought her to his office, where .under a warrant issued by Magistrate Lawson she was ordered placed in the Industrial School for Girls and held there as a material witness in default of $5,000.00 bond, all of which was fully understood and agreed to by the mother; that thereafter on November 25, 1953, the mother caused to be instituted a proceeding in habeas corpus for the release of the prosecutrix, which proceeding was dismissed by Judge Henderson; that thereafter, on December 5, 1953, Magistrate Lawson increased the bond to $7,000.00, and before the bond could be posted, the solicitor instituted an action by the Superintendent of
Recantation of testimony ordinarily is unreliable and should be subjected to the closest scrutiny when offered as ground for a new trial.
State v. Rhodes,
44 S. C. 325,
If it be true, as the prosecutrix would now have us believe, that when she was brought home on the night of September 17, 1953, she told her mother that appellant hadn’t “bothered” her, and also told her mother that she had told the police so, but that they had made her sign a false statement incriminating him, it is passing strange that the mother did not so testify at the trial and that she does not now corroborate her daughter’s affidavit. Moreover, the issue of whether or not the prosecutrix had made any such exculpatory statement was before the jury at the trial, as the following excerpts from her testimony will show:
Under cross examination:
“Q. Now, I ask you this question, and I put you on notice that I expect to contradict you: Haven’t you on more than one occasion told people, including your mother and others, that you didn’t accuse Mr. Whiteñer of doing you any harm; that he had done you no harm; and that you had not been attacked by him?
“The Court: That would be true if he undertakes to contradict her. That point will come up if he undertakes to contradict her.
“Mr. Graydon: I ask you is that your signature on here (indicating) ?
“The Witness: Yes, sir.”
Thereupon counsel for the appellant offered, for identification only, a handwritten statement signed by the prosecutrix, and the same was so marked. But the statement was never introduced or offered in evidence. On redirect examination the prosecutrix testified that on the Wednesday preceding the trial her sister had brought this paper to her at the Industrial School and had requested her to sign it, which she had done without knowledge of its contents. The following colloquy ensued:
“The Solicitor: Would you mind letting me see it, gentlemen ?
“Mr. Graydon: We haven’t put it in evidence.
“The Solicitor: Well, I would like to see it, and maybe I will offer it.
“Mr. Graydon: The paper is ours, and we have identified it. If we see fit, at the proper time we may introduce it in evidence and we may not.”
The showing in support of the motion to transfer the cause to the lower court for the purpose of a motion for new trial is insufficient, and the motion is denied.
Appellant’s exceptions, fifty in number, have been separately considered, but need not be separately discussed. As stated in his brief, they involve nine questions, which we shall take up in their order.
Nor has appellant shown abuse of discretion in the trial judge’s refusal to continue the case beyond December 22 because of the appellant’s physical condition and because of the feeling of prejudice against him. The several motions for continuance on the ground of illness have already been adverted to, and need no further discussion; and the claim of prejudice was properly disposed of on the motion for change of venue. Likewise without merit is appellant’s contention that the trial judge erred in not continuing the case because the proximity of Christmas (Exceptions 8 and 9), and in refusing to declare a mistrial on appellant’s motion at the conclusion of the State’s case because it was then apparent that the trial could not be finished before Christmas Eve (Exception 36).
Appellant insists that the trial judge erred (Exception 10) in refusing to quash the indictment, upon the ground that it contained three counts each charging a separate and distinct offense; and further (Exception 12) in refusing to physically remove the third count or permit the solicitor to paste a sheet of paper over that count so that the jury would not have it before them in the jury room.
As to Exception 12, the record shows that the solicitor’s signature was on the same page that contained the third count, and that, in response to the request by counsel for appellant that this count be physically eliminated, the trial judge suggested that, if counsel would agree, this count might he removed and the solicitor could sign at the end of the second count.
Counsel being unable to agree to this, the solicitor offered to paste a piece of paper over the third count, but counsel for appellant refused to agree. We have been directed to no authority, and have found none, for the proposition that a stricken count must be physically removed from the indictment. It is sufficient in our opinion, that the trial judge instruct the jury to disregard it, as was done in the instant case.
Appellant charges (Exception 11) that the trial judge erred in refusing to grant the request of his counsel that the jury be excluded during the argument of the motion to quash and the motion to require election. This was a matter addressed to the court’s discretion. Cf.
Roach v. Williams,
109 S. C. 29,
Fourteen exception's are grouped by appellant in his brief under Question V, as charging error in the admission of “evidence clearly pointing to and inferring the commission of sexual acts by some young boys at the instance of appellant”. Separate discussion of each of these exceptions is unnecessary, but we shall advert briefly to some of them.
Exception 13 : Permitting the prosecutrix to testify that she and the defendant and two boys went to the same rooms that she had already been to.
Exception 20: Permitting testimony as to the picking up of the two boys, Sharpe and Coleman.
Exception 24: Permitting Sharpe to testify that when he was riding around with appellant they were looking for a boy named Buck Brazzell, but did not find him, and that the witness found Coleman instead.
Exception 27: Permitting James Whitton to testify that he saw appellant and the prosecutrix in appellant’s car on the evening in question, and that he had a conversation with appellant but did not go anywhere with him.
Exception 28: Permitting Bobby Taylor to be put up as a witness. This boy testified that he was with James Whitton on the evening in question, and the solicitor then asked him if he had taken the license number of a car that night. Appellant’s counsel having objected, the solicitor thereupon withdrew the witness.
Exception 29: Permitting the solicitor to examine the witness, Buck Brazell, and refusing to instruct the jury to disregard his testimony. This boy testified that he had known appellant for some time. He was then asked if he knew anything about either Sharpe or the appellant looking for him “that night”, to which he replied, “No, sir”. The following colloquy between appellant’s counsel and the presiding judge then appears in the record:
“Mr. Graydon: Judge, that’s not relevant, or competent, or'anything. This boy knows nothing about it. It’s for no purpose whatsoever except to prejudice this defendant.
“The Court: Well, I will strike that out, and instruct the jury not to regard any of the testimony of this witness.”
Exceptions 37, 38, 44, 45 and 46: Refusing to strike the evidence relating to the picking up of the two boys, Sharpe and Coleman, and to the subsequent events at the motor
Ten exceptions are grouped by appellant in his brief under Questions VII and VIII, as assigning error on the part of the trial judge in submitting the count of common-law rape to the jury, and in his charge to the jury on common-law rape and on statutory rape. These assignments of error are based upon the contention that force is a necessary ingredient of the crime of common-law rape where the girl is under the age of fourteen years.
In the testimony of the prosecutrix concerning the first visit to the motor court, we find the following:
“He went in the office and got a key to No. 3, and drove me down to No. 3, and then he opened the door for me, and I told him I didn’t want to go in, and he took me by my wrist and hand and made me go in. * * * He walked in and locked the door, $ * * and then he told me to take off my clothes, and I told him I wouldn’t, and he took them off for
While this testimony might have been sufficient to carry the issue of force to the jury, had that issue been essential, we shall disregard it, because in his charge the learned trial judge instructed them in effect that proof of force was unnecessary under the first count if the female was less than fourteen years of age and unmarried, and under the second count if she was under the age of sixteen. To quote from his charge:
“You must say, under the evidence in the case, whether or not the defendant had carnal knowledge of,-the female whose name is mentioned in -the indictment. If he did not have carnal knowledge of her, he would not be guilty under either of the counts in this indictment. If you find that he did have carnal' knowledge, why then you pass on to the elements of force and consent.
“Ordinarily it is not rape unless it is done by force, force such as to overcome resistance. The required force is that by which a dissenting female is subjected to and put under the power of an assailant, so that he is able, notwithstanding her opposition, to have sexual intercourse with her. Ordinarily, also, rape can only be accomplished where it is done without the consent of the female.
“Now, the Constitution of our State has this to say: ‘No unmarried woman shall legally consent to sexual intercourse who shall not have attained the age of fourteen years’. [Art. 3, § 33.] And, therefore, I charge you gentlemen that, if you come to the conclusion from the evidence, in this case that the female, woman or woman-child, is unmarried, and if you find from the evidence that she is under the age of fourteen years, why then she cannot consent to carnal knowledge. It makes no difference whether she consented or not if you
“Let’s take up now then the second count of carnal knowledge of a child under the age of sixteen. With reference to this count, you have again the decision on the question of fact: Was there or was there not carnal knowledge. And precisely the same law, which I stated to you while discussing the first count, applies here as to what constitutes carnal knowledge. If the defendant did not have carnal knowledge of the female, he is not guilty under this count or the other. If you find that he did have carnal knowledge of her, why then the only other element you need inquire about, when you come to consider the second count, is simply whether or not she was under the age of sixteen. Under the age of sixteen years force or want of consent are not material. It is an offense even if done by the consent of the woman-child. Whether the woman-child consents or not, even if she does consent, if she is under sixteen it is unlawful for one to have carnal knowledge of such a person. The unlawful carnal knowledge, if you find it existed, which is purely a question of fact for you to determine, and the age under sixteen, are the only two elements constituting the statutory charge embraced in the second count in the indictment.”
And when the jury returned for further instructions and the foreman asked the court to “clarify the difference in the two counts of the indictment”, he said:
“All right, sir. Well in count No. 1, and also in count No. 2, it is necessary for the State to prove carnal knowledge. The same rule applies as to that in both cases or both counts.
“Now, in the second count, which charges carnal knowledge of a female under sixteen, why you still have the element of carnal (knowledge), but the only other element is the age limit — whether she is under sixteen years of age.”
The first count of the indictment was laid under Section 16-71 of the 1952 Code of Laws, which relates to what is frequently referred to as “common-law rape”, and the provisions of which are as follows:
“Whosoever shall ravish a woman, married, maid or other, when she did not consent, either before or after, or ravisheth a woman with force, although she consent after, shall be deemed guilty of rape.”
By Section 16-72, rape and assault with intent to ravish are made capital offenses unless the jury shall recommend mercy, in which event the punishment for either offense is made confinement at hard labor in the State Penitentiary for not more than forty nor less than five years.
The second count of the indictment was laid under Section 16-80 of the 1952 Code, which relates to what is commonly referred to as “statutory rape”, and which reads as follows:
“If any person shall unlawfully and carnally know and abuse any woman child under the age of sixteen years such unlawful and carnal knowledge shall be a felony and the offender thereof being duly convicted shall suffer as for a rape; provided, however, that when: (1) The woman child is over the age of ten years and the prisoner is found guilty the jury may find a special verdict recommending him to the mercy of the court, whereupon the punishment shall be reduced to imprisonment in the penitentiary for a term not exceeding fourteen years, at the discretion of the court;
“(3) The defendant is under eighteen years of age and the woman-child is above the age of fourteen years previous unchastity may be defensively shown and if such want of chastity be found by a special verdict of the jury the punishment imposed by the court shall not exceed one year’s impriosnment or a fine of not more than five hundred dollars, alternatively awarded.”
The progenitor of Section 16-71 was the old English statute of 13 Edward I, chapter 34, enacted in the year 1285, which reads in part as follows:
“It is provided, that if a man from henceforth do ravish a woman married, maid, or other, where she did not consent, neither before nor after, he shall have judgment of life and of member. (2) And likewise where a man ravisheth a woman married, lady, damosel, or other, with force, although she consent after, he shall have such judgment as before is said, ;|c i]c >jC >>
Section .16-80, on the other hand, is derived from the English statute of 18 Elizabeth, Chapter 7, enacted in 1576, Section 4 of which reads as follows:
“And for plain declaration of law, be it enacted, that if any person shall unlawfully and carnally know and abuse any woman child under the age of 10 years, every such unlawful and carnal knowledge shall be felony, and the offender thereof being duly convicted, shall suffer as a felon without allowance of clergy.”
The two English statutes just mentioned were, along with numerous others, by act of the Assembly of the Province of South Carolina ratified December 12, 1712, declared to be of force in said province. II Stat. at Large, 401, 422, 499. Presumably the crime of rape remained, as it had been at common law, a capital one, until the Act of February 4, 1869,
The Act of March 9, 1896, XXII Stat. at Large, 223, referred to the crime of carnal knowledge and abuse of a woman-child in language substantially identical with that of the Statute of 18 Elizabeth, except that the age of the woman-child was changed from ten years (which is said to have been the age of consent at common law) to fourteen years (which was the age of consent fixed by Article 3, Section 33, of the 1895 Constitution of South Carolina), and further provided for reduction of the penalty from that “as for a rape” to imprisonment for not exceeding fourteen years in cases where the woman-child was over the age of ten years and the jury recommended mercy. By the Act of March 7, 1921, XXXII Stat. at Large, 282, the age of the woman-child was changed from fourteen to sixteen years, and the
Our statutes relating to rape, Code, 1952, Sections 16-71 and 16-72, and to carnal knowledge of a woman-child, Code, 1952, Section 16-80, are, of course, subservient to the provision of Article 3, Section 33 of the Constitution of 1895, which declares that “No unmarried woman shall legally consent to sexual intercourse who shall not have attained the age of fourteen years.” Consent on the part of the female being fundamentally • inconsistent with the concept of rape, and indeed with its very definition, it is ordinarily an essential element of the crime that the act be committed without the consenhof the female, or, as it is otherwise expressed, against her will. 75 C. J. S., Rape, § 11, p. 473. And, in general, force on the part of the male and resistance on the part of the female are necessary ingredients of the crime, as indicative of nonconsent. 75 C. J. S., Rape, § 11, pp. 474, 475, 476. But the force may be actual or constructive, and the degree of force and of resistance required to characterize the act as rape must, of necessity, vary with the circumstances of the particular case. Thus sexual intercourse with a woman who is unconscious or insane is rape, and neither force nor resistance is necessary to constitute the offense. “Also, where the female is under the age of consent, force and resistance are immaterial and not necessary to constitute the offense. Hence, to constitute the offense on a female below the age of consent, the only material elements are the carnal knowledge and the age of the female.” 75 C. J. S., Rape, § 13, p. 479. This conclusion is supported by the weight of authority in other
“ ‘The specific intent to commit rape is an essential element both of attempt to rape and of assault with intent to rape. Therefore, to convict of either of these offenses, it must be shown that the accused intended to have intercourse with the female by force and against her will, that, in case of assault, he not only used force, but used it with the intention of having intercourse notwithstanding any resistance on the part of the female, unless she was unconscious, insane, or of such an age that she was incapable of consenting.’ ”
The same reasoning whereby in the case of sexual intercourse with a woman who is unconscious or insane, the elements of force and resistance are held to be immaterial, or conclusively presumed, applies where sexual intercourse is had with a female who is under the age of consent. In one case physically, in the other as a matter of law, she is incapable of consenting. Since evidence of consent, even if admissible, cannot avail as a defense against the charge of rape where the female is under the age of consent, it is manifest that in such case neither force on the part of the male nor resistance on her part is an essential ingredient of the crime. Where the female is under the age of fourteen and unmarried, the only other element necessary to be' proven in order to establish the crime of rape is the fact that the defendant had sexual intercourse with her. Where she is under the age of sixteen, the only other element necessary to be proven in order to establish the crime of carnal knowledge under Section 16-80 is the fact that the defendant had intercourse with her. In neither case is it necessary for the State to prove force or want of consent, and the trial judge correctly so charged.
Appellant finally urges that the manner in which the prosecution was conducted was prejudicial and so improper as to
Exception 15: That the trial judge erred in allowing the solicitor to propound leading questions to the prosecutrix. Although this exception does not specify the questions on which 'it is based, we have considered it nevertheless; and the record reveals that in the course of the direct examination of this witness in chief appellant’s counsel objected to but five questions as leading. The first two objections were as to where and how long her family had lived in West Columbia before they moved to Columbia, and were properly overruled. The third was whether the surname, by which she was known was that of her father or that of her stepfather; and the trial judge sustained the objection, although he might properly have overruled it. The fourth was to the following question: “On about the 17th of September this year, did you see the defendant anywhere? Did you see Mr. Whitener anywhere?” The objection to the question having been overruled, the witness testified that she saw him “at the store” when she was “fixing to go catch the bus”, but that she couldn’t remember the date, or whether or not it was in September. And finally, after the witness had testified in detail as to appellant’s actions after he had made her go into the room at the tourist court, appellant’s counsel objected when the solicitor asked her: “Honey, I want to know whether or not he had sexual relations with you.” In view of the testimony which she had just given, the question was not leading, and the objection was properly overruled.
Exception 35: That the trial judge “erred after ruling that certain testimony of the witness Rawlinson was not proper, in failing to instruct the jury as to disregarding said testimony.” We have carefully examined the transcript of the record of the testimony of this witness and fail to find that the trial judge ruled that any of it was improper.
Exception 41: That the trial judge erred in allowing the solicitor to examine the appellant concerning his relations with the sister of the prosecutrix, and to indicate by his
Exception 42: That the trial judge erred in permitting the solicitor to interrogate appellant as to a certain conversation between appellant and the mother of the prosecutrix. The particular conversation is not specified, but we gather that reference is to that portion of the cross-examination in which, appellant having admitted that a week before the trial he and the mother and the sister of the prosecutrix had had a conversation at Newberry, the solicitor proceeded to ask him: “Do you know anything you talked to them about yesterday a week ago? Do you know anything about this so-called letter or statement or something that Mr. Graydon produced here that they said this little girl’s signature was on?” The question was not objected to, and the witness replied, also without objection: “No, sir, I have to leave those matters to my attorneys.”
Exception 43: That the trial judge erred in allowing the solicitor to question the appellant “as to a certain paper which was not in evidence and which had no possible relationship or relevancy to the issues, said error being that this line of questioning was highly prejudicial to the defendant, indicating that he had secured a paper which was not disclosed by wrongful and illegal methods.” The “paper” referred to is obviously the written statement of which mention has been made in our discussion of Exceptions 41 and 42. Appellant’s counsel had produced it, had had it marked for identification, and had then declined to put it in evidence or to let the solicitor read it. Whether or not it was relevant to the issues was within the knowledge of appellant’s counsel,
Because of the gravity of the offense with which appellant was charged we have considered many of the numerous exceptions in perhaps greater detail than their merit warranted. Appellant has been fairly tried, and the factual issues have been resolved against him by the jury. Careful scrutiny of the record reveals no error of law. All exceptions are overruled and the judgment of the lower court is affirmed.