Thomas v. StateThomas v. State
- Reporters:
- ,
- Before:
- Davis
Lead Opinion
Plaintiff in error was tried and convicted in the Criminal Court of Record of Duval County on an information chаrging him with having unlawful carnal intercourse with the prosecutrix, an unmarried female of previous chaste character and who was at the time of such intercourse under the age of eighteen years, - sec. 5409, R. G. S. of 1920, (sec. 7552, C. G. L. of 1927). A sentence of five years in the State Penitentiary was imposеd and he seeks relief from that judgment by writ of error.
It is first contended that the charge of the trial cоurt was erroneous in that it charged the jury that if they found from the evidence that Clayton Thomas (the plain *333 tiff in error) did on the sixth day of July, 1930, or within two years last prior to the date of the information, which was Aрril 14, 1931, unlawfully have carnal intercourse with one Edna Anderson, an unmarried female of previous chaste character, it would be their duty to find him guilty.
The record discloses that Edna Anderson became eighteen years of age April 4, 1931, ten days prior to the date of the information. This charge wаs an inaccurate statement of the law in so far as it covered these ten days, but such error as it constituted was harmless because all the evidence points to the commission of the crime condemned by the statute on or about the date charged in the information, to-wit: July 6, 1930. Harmlеss error is not a ground for reversal. Sec. 2812 R. G. S. of 1920, (Sec. 4499 C. G. L. of 1927).
It is next contended that the previous сhaste character of the prosecutrix was not proven.
This court has held that in prosеcutions under the statute involved here, the previous chaste character of the prоsecutrix is a material element of the offense to be alleged and proven. We think that on consideration of the whole record, this and every other element of the offense сharged against plaintiff in error was alleged and proven beyond any question.
Several errors are assigned on the exclusion of evidence tending to show that the prosecutrix was a рerson of low morals and indulged in free and intimate or loose conduct with men.
This evidence wаs all properly excluded because it was indefinite as to time and terms and in other respects failed to meet the requirements of the rule for its admission.
The judgment below is accordingly affirmed.
Affirmed.
*334 Buford, C.J., and Whitfield, Ellis and Terrell, J.J., concur.
Davis, J., dissents.
Brown, J., not participating.
Dissenting Opinion
(Dissenting).—I think the statute is designed to protect females who are under the age of eighteen yeаrs who possess both physical and mental purety. Andre v. State, 5 Iowa 389, 69 Am. Dec. 708. Furthermore the statute as now written is not limited to females but applies to chaste males under eighteen years of age. Sеe Chapter 8596, Acts of 1921, which amended Section 5409 R. G. S. to protect males as well as femalеs under the age of eighteen years of previous chaste character.
At the trial the dеfendant produced a girl friend of the prosecutrix who testified that she and the prosecutrix hаd been out on “petting” parties. The purpose of this evidence was to show that prosеcutrix was a frequent participant in “petting” parties and therefore was not of previous chaste character as alleged. The court sustained an objection to a question by counsel for defendant as to what she meant by the words “petting party.” The ground of the State’s objection was that “petting party” is a term generally understood and needs no explanatiоn. The Court in sustaining the objection thereby refused to let the witness Dorothy Taylor explain what she mеant when she said that she and the prosecutrix frequently drank liquor and went out on “petting” parties. I think this wаs error.
Even though the term “petting party” may have been quite well understood by the Assistant County Solicitor, it may not have been as fully understood by the members of the jury, nor was it possible to translate into а record for this court the knowledge of the Assistant County Solicitor in making of a proper bill of exceptions ,so that we might have the benefit of it for our review *335 here on writ of error. See Flores v. State, 72 Fla. 302, 73 Sou. Rep. 234, L. R. A. 1917B.
It seems to me that in these days оf “flaming youth” the defendant in, cases like this should be accorded the fullest opportunity to show thаt the prosecuting witness is not “of previous chaste character” as must be alleged and рroved to warrant a conviction, and that to unduly restrict that right is error.
I think the judgment should be reversed fоr this and other errors of like character which in my judgment warrant a new trial.
The main complaint оf the prosecuting witness seemed to be that the accused married somebody else and nоt her as she says he promised. The evidence is probably of such conflicting character that we could not reverse the case for insufficiency in that respect alone, but it is by no means satisfactory in my judgment to conclusively show the pure and chaste character of the prosecutrix so as to render the procedural errors harmless because of clear proof of guilt.
I therefore dissent.