Hollins v. State , 128 Miss. 119 ( 1921 )

Anderson, J.,

delivered the opinion of the court.

The appellant was indicted and convicted in the circuit court of Sunflower county of the rape of Katie Lou Lee, and sentenced to the peniteentiary for one year, from which judgment he prosecutes this appeal.

The indictment and conviction was under chapter 171, Laws of 1914 (Hemingway’s Code, sections 1093 to 1095, inclusive), known as “the age of consent” statute. The statute is in this language:

“An act to fix the ‘age of consent’ at eighteen years.

“Section 1. Be it enacted by the legislature of the state of Mississippi, 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.

“Sec. 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.

“Sec. 3. This act shall not be construed as repealing or modifying section 1358 of the Code of 1906, as amended by chapter 171 of the acts of 1908, in regard to rape and carnal knowledge of the females under twelve years of age.”

It is contended on behalf of appellant that this statute is violative of section 71 of the Constitution, and therefore unenforceable, because its title does not indicate the subject-matter of the act. It will be observed that the title of the act as it appears in chapter 171, Laws of 1914, is “An act to fix the ‘age of consent’ at eighteen years;” and it is true that the title does not indicate clearly the subject-matter of its contents. Section 71 of the Constitution provides, among other things, that— “Every bill introduced into the legislature shall have a title, and the title ought to indicate clearly the subject-matter or matters of the proposed legislation.” (Italics ours.)

This constitutional provision is mandatory only in so far that every act is required to have a title. The act in question has a title, be it ever so defective. In several recent decisions this court has held that the provision in this section of the Constitution that “the title ought to indicate clearly the subject-matter” of the act is directory, not mandatory. Jackson v. State, 102 Miss. 663, 59 So. 873, Ann. Cas. 1915A, 1213 ; Lang v. Board of Supervisors, 114 Miss. 341, 75 So. 126 ; Heidelberg v. Batson, 119 Miss. 510, 81 So. 225. But it is insisted that, because of the fact those were civil, and not criminal, cases, they are not controlling here; it is said that the statute here involved is a criminal statute, as to which the constitutional provision in question should be treated as mandatory. We are unable to see the distinction. The proper construction of the statute, or whether it shall be strictly or liberally construed, is not the question, but whether the Constitution applies to all statutes alike, whether civil or criminal. And we hold that it does.

It is contended further that section 2 of the statute is unconstitutional in so far as it places upon the defendant the burden of showing his innocence by requiring him to show that the injured female was not of previous chaste character. It is said that this provision of the statute strikes down one of the fundamentals in criminal prosecutions— the presumption of innocence that goes with the defendant throughout the trial; that the legislature is not competent under our system of government to declare by.statute that a presumption of guilt shall follow a certain state of facts. 6 R. C. L., section 461, and other authorities are referred to to sustain that position. Those authorities treat of conclusive presumptions, not prima-facie presumptions of guilt. Conceding that the legislature could not constitutionally provide that certain facts should be conclusive proof of guilt, still that principle has no application here, for this .statute does not declare a conclusive presumption of guilt, but only a prima-facie presumption. It provides that the female shall be presumed to have been of previous chaste character, and the burden is on the defendant to show otherwise. And the defendant is not required to overturn the presumption by a preponderance of the evidence, but is entitled to acquittal when the evidence raises a reasonable doubt as to the chastity of the female.

Appellant contends that the trial court should have directed a verdict of acquittal because the testimony of the injured female as to certain of the essentials of the crime were uncorroborated. It will be observed that the essentials of the' crime are: That the injured female must have been unmarried, of previous chaste character, over twelve and under eighteen years of age; the defendant must have been older than the injured female; he must have had carnal knowldge of her. In section 2 of the act it is provided that— “No person shall be convicted upon the uncorroborated testimony of the injured female.”

In the case at bar there was no evidence whatever except that of the injured female to the effect that the defendant was older than she. It is argued that, as to this fact, constituting one of the essential elements of the crime, there could be no conviction on her uncorroborated testimony. The question is whether or not the provision in the statute that there shall be no conviction upon the uncorroborated testimony of the injured female applies to each and all of the essential elements of the crime. By analogy this question is settled in Ferguson v. State, 71 Miss. 805, 15 So. 66, 42 Am. St. Rep. 492. The statute under which the defendant wps convicted in that case was section 1298, Code of 1892, which, as amended in section 1872, Code of 1906 (section 1108, Hemingway’s Code), defines and denounces the crime of seduction of females over the age of sixteen years and under the age of eighteen years, the last clause of which provides that there shall be no conviction on the testimony alone of the seduced female. It was contended that, under this provision of the statute, it was necessary that the testimony of the injured female should he corroborated as to every essential element of the crime one of which was that she must have been of previous chaste character. The court said that there was much diversity of opinion as to the extent of the corroboration required; that there were cases in which it had been held sufficient to corroborate the female seduced alone on the promise of marriage; and, on the other hand, that there were cases holding that the corroborating evidence must support all of the necessary elements in the constitution of the crime. The court concluded that the cases lying between these two classes announced the true rule, viz.:

“The testimony of the female seduced must be corroborated by other evidence as to the promise of marriage and the act of sexual intercourse. . . . And when she is supported as to the promise of marriage and. the act of sexual intercourse — the two great fundamental essentials —the corroboration, we think, will be sufficient.”

The reasoning in that applies with equal force here.

In State v. Bradford, 89 So. 767, which involved this identical statute, the court, in speaking of the purpose of the legislature in requiring the testimony of the injured female to be corroborated, said that it was the plain purpose of the statute by this provision “to protect also the innocent male . . . against the wiles and designs of the unscrupulous female, who by blackmail or otherwise Avould destroy him.”

The secret part of the crime — that element which, in the nature of things, in a great majority of cases, no one else than the guilty parties would know anything about — is the element as to which she must be corroborated; it is the act, as said in the Ferguson case, supra, in the commission of which the injured female is quasi particeps criminis. Those elements of the crime which are susceptible ordinarily of proof by other witnesses than the guilty parties require.no corroboration; and this principle applies to all the elements of the crime of which appellant was convicted under this statute except that of carnal knowledge; as to that, and that alone, the evidence of the injured female must be corroborated; that is the only element of the crime that is ordinarily known only to the guilty parties.

The court finds no merit in the other assignments of error which it does not deem necessary to notice specifically.

Affirmed.