State v. Bradford , 126 Miss. 868 ( 1921 )

Anderson, J.,

delivered the opinion of the court.

- The appellee, Paul Bradford, was indicted, tried, and acquitted in the circuit court of Harrison county of the charge that (quoting from the indictment) —

“On or about the 15th day of September, 1919, then and there being a male person older than Verna Vancourt, did unlawfully, willfully, and. feloniously have carnal knowledge of and carnally know, by having sexual intercourse with, the said Verna Vancourt, an unmarried female person of previous chaste character, younger than he, and over twelve years and under eighteen years of age.”

At the conclusion of the testimony for the state, on motion of appellee’s attorneys, the evidence for the. state was by the court ruled out, and the jury directed to return a verdict of not guilty for the appellee, which they did, and judgment of the court was entered accordingly, from which the state prosecutes this appeal. This action of the court was based on the ground that there was no evidence tending to show the guilt of appellee except that of the prosecutrix, Verna Vancourt, which the statute under which the prosecution was had (chapter 171, Laws of 1914; Hemingway’s Code, sections 1098, 1094) declares to be insufficient. The petition for appeal by the district attorney on behalf of the state, after reciting the action of the trial court in excluding the evidence for the state, directing the jury to return a verdict of not guilty, and the rendition of the judgment discharging appellee, proceeds in this language:

.“And the state of Mississippi, feeling aggrieved at said judgment of the court, and in view of the further fact that the ladies along the Gulf Coast of Mississippi in mass meteing assembled have, since the rendition of said judgment, requested the district attorney to appeal the said cause to the supreme court, and being desirous of having the supreme court decide the question of law presented in said cause, the state doth hereby, through its district attorney, pray for an appeal.”

The indictment against the appellee was returned at the May term, 1921, of the court, at which term the trial was had. The indictment avers that the crime charged was committed on or about the 15th of September, 1919. It developed in the trial, on appellee’s motion to quash the indictment (which was overruled by the court), that at the same term at which this indictment was found, on the testimony of the prosecutrix, Yerna Yancourt, another was also found and returned on her testimony against A. O. Bourdon, charging him with having carnal knowledge of her on or about the 16th of December, 1920, in violation of said statute.

Only two witnesses testified on behalf of the state, the prosecutrix and J. S. Sablich. The former testified in substance as follows: That the crime charged was committed by the appellee one Sunday afternoon about the 1st of October, 1919; that on the 28th of October, 1919, she was sixteen years of age; that her home at the time was in the city of Biloxi; that on that afternoon, about four-thirty o’clock, she was passing Grant’s drug store in said city, where she saw appellee seated in his car — using her language, “one of his father’s closed-in limousines;” thereupon she stopped, and appellee asked her if she would go riding with him; that she accepted the invitation, thinking she was going out with a gentleman; that no one was present and saw her get in the car with appellee; that they drove up over Back Bay ridge, and then northwest on the Riverdale public road, about two or three miles, where the car was stopped, and the appellee there, in the car in the road, hugged and kissed her and begged her to permit him to have sexual intercourse with her; that she resisted him and fought him off until he told her that if she did not submit he would put her out of the car and let her walk home; that thereupon she submitted, and he told her that “if anything happened he would marry her;” that they then turned around and drove back to Biloxi, and to her home, which they reached about six o’clock that afternoon, where appellee let her put of the car and left her; that this was the irst- and only time appellee ever had sexual intercourse with her; that she only went with him on two other occasions after that, when he twice took her and a girl friend riding; that, appellee asked her to say nothing to any one about what occurred between them on the River-dale road; and that she.agreed not to do so and kept her promise for more than a year, and until she told Mr. Bourdon. .

The witness Sablich testified that he had known appellee all his life, and that be was at the time of the trial be•tween twenty-one and twenty-five years of age; that he knew the Back Bay road from Biloxi to Riverdale, and that it was a graded shelled public road all the way.

The sole question is whether the trial court erred in directing a verdict and judgment of acquittal. At common law rape is the having of unlawful carnal knowledge of a female over the age of ten years, forcibly and against her will, or such knowledge of a female child under tbe age of ten years, either with or without her consent. 33 Cyc. 1415, 1416. And our statute defining rape (Code of 1906, section 1358), in force for many years prior to its amendment (Acts March 19,. 1908; Laws of 1908, chapter 171; Hemingway’s Code, section 1092) was merely declaratory of the common law. The amendment referred to raised the age of consent from ten to twelve years, and provided that, where'the female is above the age of twelve years, and is drugged so as to render her incapable of physical resistance, this should be equivalent to force. This statute as thus amended is still in force, and constitutes section 1358, Code of 1906, as amended by chapter 171, Laws of 1908 (Hemingway’s Code, section 1092). Thus the law on the subject stood until the adoption of chapter 171, Laws 1914 (Hemingway’s Code, sections 1093 to 1095 inclusive), which is the statute under which the appellee was indicted and tried. That statute is as follows:

“1093. Rape — Age of Consent — Eighteen Years. — 1. That any male person who shall have carnal knowledge of any unmarried female person of previously chaste character younger than himself, and over twelve and under eighteen years of age, upon conviction, shall be punished either by a fine not exceeding five hundred dollars ($500), or by imprisonment in the county jail not longer than six months, or by both such fine and imprisonment or by imprisonment in the penitentiary not exceeding five years; and such punishment, within said limitation, shall be fixed by the jury trying each case.

“1094. Rape — Age of Consent — “Chaste Character” Presumed — Burden of Proof. — 2. In the trial of all cases under section 1 of this act, it shall be presumed that the female was previously of chaste character, and the burden shall be upon the defendant to show that she was not; but no person shall be convicted upon the uncorroborated testimony of the injured female.

“1095. Rape — Age of Consent — How Act to he Construed. — 3. This act shall not be construed as repealing or modifying section 1358 of the Code of 1906 (section 1092, this Code), as amended by chapter 171 of the Acts of 1908, in regard to rape and carnal knowledge of females under twelve years of age.”

This statute is commonly known as “the age of consent act.” . It creates an entirely new character of rape, unknown to either the common law or any of the previous statutes of this state; and still by express provision of its last section it neither modifies nor repeals our statute then in force defining rape. Code of 1906, section 1358, as amended chapter 171, Laws of 1908; Hemingway’s Code, sections 1092 to 1095 inclusive. There is no conflict, however, between the two statutes; the later statute only supplements the former. The controlling purpose in the adoption of the statute in question was the protection of the unmarried female between the ages of twelve and eighteen years, of chaste character, from the lecherous scoundrel of the opposite sex, of years above hers, who would rob her of her virtue. On the other hand — whether wisely or not is not for the court to say — the act. expressly provides that “no person shall be convicted upon the uncorroborated testimony of the injured female.” Thus the purpose is plainly shown to protect also the innocent male (and the writer believes there are still some of that sort left) against the wiles and designs of the unscrupulous female, who by blackmail or otherwise would destroy him. The law is so written; this court cannot change it if it would. On the contrary, the members of this court are sworn to declare it as written. The legislature alone can change it.

We have examined the evidence in this case most carefully and with the greatest consideration, and we are unable to find one particle of testimony going to corroborate the prosecutrix. There is not even a corroborating physical fact shown in the evidence. • The case stands alone on her testimony. Therefore, under the plain letter, as well as spirit, of the law, the case was not established by the required evidence; and it was the duty' of the trial court to do as it did — direct a verdict and judgment for the appellee.

The court entertains this appeal notwithstanding the ruling in State v. Brooks, 102 Miss. 661, 59 So. 860 (which ruling the court adheres to), because of the unusual happenings connected with the trial below, as shown above, and the further reason that the district attorney and appellee’s attorney join in a request that this court pass on the question involved, and the added fact that the Attorney-General does not make the 'point that there is no right of appeal by the state. Therefore this case should not be treated as a precedent for the right of appeal by the state in such cases.

Affirmed.