46 Fla. 145 | Fla. | 1903
In May, 1902, in the Circuit Court of Suwannee county, the grand jury duly presented an indictment against the plaintiff in error, charging that he “on the first day of December, A. D. 1901, in the county and State aforesaid, with force and arms, unlawfully did then and
Section 2598, Revised Statutes of 1892, before its amendment read as follows: “Carnal intercourse with unmarried female under sixteen years. Whoever has carnal intercourse with any unmarried female who is under the age of sixteen years shall be punished by imprisonment not exceeding twelve months or by fine not exceeding five hundred dollars.” By chapter 4965, act approved May 31, 1901, and which took effect on the day it was approved, the quoted section is declared to be amended so as to read as follows: “Carnal intercourse with unmarried female under eighteen years. Whoever has carnal intercourse with any unmarried female who is at the time of such intercourse under the age of eighteen years, shall be punished by imprisonment not more then ten years, or by a fine not exceeding two thousand dollars, or by both fine and imprisonment.” The amendment, under section 32, article III, constitution of 1885, does not affect the prosecution or punishment of a crime committed before it took effect, but as to such crimes the quoted section of the Revised Statutes remains in force. Raines v. State, 42 Fla. 141, 28 South. Rep. 57- It is very evident to the court that the indictment was framed with a view of charging an offense committed before the amendment. It follows the language of the section before its amendment, alleging the age of the female to be under sixteen years. It alleges, however, that the
In Commonwealth v. Maloney, 112 Mass. 283, the court says: “It is true that generally in criminal prosecutions it is not necessary that the precise time 'alleged should be proved. But every indictment or complaint must allege a precise day and the time alleged must be such that the record will show that an offense has been committed and that the court may ascertain from it what punishment is to be imposed. When a statute makes an act punishable from and after a given day, the time of the commission of the act is an essential ingredient of the offense to the extent that it must be alleged to have been after such day. So, if a statute changes the punishment of an existing offense by imposing a severe penalty, with a clause saving from its operation offenses already committed, the allegation of time is material. The nature and character of the offense, and the penalty affixed to it, depend upon the time when the act charged is committed. If in such a case an indictment alleges the act to have been committed before the passage of the statute enlarging the penalty, the offense charged and the punishment annexed to it are different from the offense and punishment if the act is committed after such time. They are different offenses, and an allegation of one is not sustained by proof of the other. Otherwise the defendant would be exposed to a greater punishment upon a trial than he would be upon a plea of guilty.,r This amended statute which was in force at the date alleged in the indictment not
It is insisted by the Attorney-General that the court should treat this indictment as charging an offense under the amendment. He argues that as the amendment makes it a crime to have carnal intercourse with an unmarried female under the age of eighteen years, it likewise makes it a crime to have intercourse with an unmarried female under the age of sixteen years as here charged, for if the female was under the age of sixteen she was likewise under the age of eighteen; that the crime is here charged in the language of the amendment except that the age limit is stated at sixteen instead of eighteen; that the variance is immaterial since to be under sixteen is to be under- eighteen. We do not deem it essential to the decision of this case to determine this question. The indictment unquestionably
The judgment is reversed and the cause remanded with directions to the Circuit Court to grant the motion in arrest.