Lee v. State , 138 Miss. 868 ( 1925 )

^* Headnotes 1. Criminal Law, 17 C.J., Section 3702; Rape, 33 Cyc., p. 1511 (1926 Anno); 2. Rape, 33 Cyc., p. 1511. From a conviction of the statutory crime of rape, W.S. Lee, Jr., charged with that crime in and upon the person of Ethel May Caldwell, unmarried female of previous chaste character younger than himself, over twelve and under eighteen years, and sentenced to pay a fine of five hundred dollars and ninety days' imprisonment, which was the minimum sentence by law for this crime, prosecutes this appeal.

Owing to the nature of the case, only such facts will be detailed as are necessary to a decision thereof.

Ethel May Caldwell of Ellisville, Miss., swore that she lived with her mother, and at a time when she was sixteen years of age, and the defendant told her he was nineteen, in one of many automobile trips over the country at night, in that county, on the return trip home with another boy and girl present, they had sexual intercourse, in February, 1923; also that he courted her and made love to her. On February 25, 1924, she gave birth to a girl baby. Profert was made of the baby without objection at the time on the part of the defendant. On cross-examination she stated that she met the defendant for the first time in August, 1922; that by October 1st she had become engaged to him, and admitted that on October 1, 1922, she wrote a letter to the defendant, the original of which has been sent up to this court with the record. That letter contains fragments of alleged poetry which is so suggestive, revolting, and obscene as to preclude its being printed in this opinion. In its sexual daring, in apparently seeking adventure in sensual encounter, to be written by a girl sixteen years of age, it amazingly shows a state of mind hardly believable in this day of religion and education — and the letter shows education so far as penmanship, spelling, and that character of knowledge goes. But the dare to this young man, written within sixty days after she first met him, rivals Byron's sensual description in Don Juan or Shakespeare's scenes in Venus and Adonis, and parallels Kipling's description of Aggie at Ogli. The court has resorted to this method of hinting the character of the letter because the letter is important as related to the trial of the cause.

If the mother of the girl told the truth and the mother of the boy told the truth as to the respective ages of each parent's own child, the girl was some months older than the boy. Mrs. Caldwell swore positively that the mother of the boy invited her to the boy's nineteenth birthday dinner which occurred in February, 1922, as well as invited the injured daughter and other friends. The daughter swore that this conversation or invitation to the birthday dinner occurred, but said it could not have happened in February, 1922, but was subsequent to her meeting with the boy the first time in August, 1922. This is quoted to show that the cause is very close on the facts. The only competent testimony that the boy was older than the girl is the girl's statement that he told her that he was nineteen years of age. And in view of the letter, we are not surprised that he would represent himself in any capacity or age which would be pleasing or acceptable to her.

Another noticeable contradiction is that on cross-examination the girl swore that she had sexual intercourse with the boy in front of her house before February, 1923. The word "before" was used in the cross-examination, and her answer was positive. Then on redirect examination by the district attorney, she swore that this act in front of her house was later than February, 1923, and on recross-examination she explained that counsel then using the word "prior," instead of the word "before," confused her and caused her to make the false statement, as she did not understand the meaning of the word "prior."

The prosecuting witness, Ethel May Caldwell, was not at any time asked whether or not she was of previous chaste character, and the state stood on the presumption of chastity. On behalf of the state, in view of the letter which we cannot copy, instruction No. 3 was given.

"The court instructs the jury that the law presumes that the injured female was previously of chaste character, and the burden is on the defendant to show that she was not."

Instruction No. 4 for the state is as follows: "The court further instructs the jury for the state that a female under the age of eighteen years cannot legally consent to her own defilement."

We think instruction No. 4 was erroneous, in that it did not contain the statement, "Provided she was younger than the defendant." But we would not reverse this case on that ground because, perhaps, it may be cured. But the instruction is erroneous, and we call attention to it for the reason that there must be another trial.

Instruction No. 3 was erroneous because the girl had admitted writing the letter which the court has undertaken to outline in a decent way. With this letter in the record the presumption of chastity of the injured female was impeached and the burden of proof upon the question of her chastity was no longer on the defendant in this case. This case is ruled by the case of Johnson v. State (Miss.) 101 So. 685, in which Judge ETHRIDGE, speaking for the court, said, after quoting the statute under which this indictment is authorized: "Under this statute, where nothing appears in the evidence to impeach the chastity of the female, it is not incumbent upon the state to prove the fact of her chastity, but wherever the defendant introduces proof directly impeachher chastity, or where from all the evidence it may be presumed that the female was unchaste, then it devolves upon the state to prove the whole case beyond a reasonable doubt, including chastity. The statute merely relieves the state from making proof of chastity, where the evidence has not presented facts or testimony which, if true, would warrant the jury in believing the female previously unchaste, and it was error for the court to instruct the jury, under the evidence in this case, that the burden was upon the defendant to prove that she was unchaste."

The letter most positively impeached her chastity, especially in view of the fact that no word or declaration of chastity falls from her lips in this record which is contradictory, and in which she testified that the act complained of "was by mutual consent," "without force," and "mutually satisfactory."

We are not unmindful of the case of Powell v. State (Miss.), 20 So. 4, where Judge WOODS held that it was not error to instruct the jury, in a prosecution of this kind, that "it was sufficient to show that her reputation had been that of a chaste girl, and we do not believe that this case, depicted in such forcible language by Judge WOODS, wherein he says, "She may shock with the indiscretion of her speech and yet have never had a thought of parting with virtue; and, until she does part with her virtue, she is regarded by the law as of chaste character," intends to hold that the woman may not be impeached by proof of her own words and deeds or circumstantially.

In the case at bar we grant the statement, supra, to be correct, but unchastity may be shown by circumstances which would be more convincing than the statement of any witness as to the general reputation of a female in the community in which she lived, or where there is a statement of a witness that he had participated with her in the destruction of her chastity. We think it was prejudicial error to have given the instruction that the burden of proof was upon the defendant, as to the chastity of the prosecutrix in this case.

Reversed and remanded.