Hunter v. State ( 1923 )

West, J.

The defendant, John Hunter, plaintiff in error in this court, was indicted by a grand jury in Jackson County charged with having unlawfully had sexual intercourse with Ruby King, an unmarried -female under the age of eighteen years of previous chaste character. Upon a trial there was á verdict of conviction. To review the judgment imposing sentence writ' of error was taken from this court.

The only point made by counsel for plaintiff in error and submitted for determination on this writ of error is that it ivas' shown by the evidence introduced on behalf of the .State that the defendant did, upon, several occasions prior to the date alleged in -the. indictment, have intercourse with the-unmarried-female named, and--it-is contended, that because of this'proof she was not; at the time of the' alleged offense, of previous chaste character, ancl therefore the offense charged is not proved. There is no merit in this contention. The established general .rule is that except in those cases where the allegation of the precise time is material a different date from that alleged in .the indictment before the date of the return of the indictment and within the statute of limitations may be proven at the trial as the date upon -which the -crime was committed. Straughter v. State, 83 Fla. 683, 92 South. Rep 569; Whatley v. State, 46 Fla. 145, 35 South. Rep. 80; Chandler v. State, 25 Fla. 728, 6 South. Rep. 768. Every proven instance-of intercourse between the defendant and the female person named was in Jackson County and was prior to the return of the indictment and within the statute of limitations. -At the time of the first act of unlawful intercourse the female named was- of previous chaste character, if the statement made by her that she-had never previous to-that time had sexual intercourse with any one else, which -was not disputed, was true.. There-is no reason why this class of eases should be -withdrawn from the general- rule stated. The defendant-, upon a charge of this kind, should not be permitted to assert that-the female person named did not upon the date alleged possess the virtue of chastity because he had upon a previous date,, prior to the return of the indictment and within the statute of .limitations; robbed her of it, and upon the theory demand-that he be discharged by a court whose function it is to administer justice.

In so far as the case of Bynum v. State, 76 Fla. 618, 80 South. Rep. 572, is in conflict with the views herein expressed, it is overruled.

The judgment is affirmed;

Whitfield-and-Ellis, J. J;, concur. Taylor, C. J., and Browne, J., dissent.