
    NORMAN v. STATE.
    (No. 6175.)
    (Court of Criminal Appeals of Texas.
    May 11, 1921.)
    1. Rape <&wkey;>4 — Previous unchaste character an absolute “defense.”
    In a prosecution for statutory rape upon a girl between 15 and 18 years of age under Acts 35th Leg. (1918; 4th Called Sess.) c. 50, no conviction can result where it is shown that the prosecutrix was of previous unchaste character; the use of the word “defense” in such statute precluding any other meaning (citing Words and Phrases, Second Series, Defense).
    2. Rape <&wkey;4 — "Chaste woman” and, “unchaste woman” defined.
    A “chaste woman,” within the meaning of Acts 35th Leg. (1918; 4th Called Sess.) c. 50, providing that proof of previous unchaste character is a defense in a prosecution for statutory rape on a female between 15 and 18 years of age, signifies one who has had no carnal knowledge of men as applied to an unmarried woman, and an “unchaste unmarried woman” is one who has had carnal knowledge of men.
    [Ed. Note. — For other definitions, see Words and Phrases, First and Second Series, Chaste; Unchaste — Unchastity.]
    
      3. Rape <&wkey;4 — Unchastity prior to reaching age of consent a defense in prosecution for statutory rape on female between 15 and 13 years of age.
    
    In a prosecution for statutory rape upon a female between 15 and 18 years of age under Acts 35th Leg. (1918; 4th Called Sess.) c. 50, evidence of the want of chastity prior- to the time she attained the age of consent was available to show previous unchaste character as a defense.
    4. Rape <&wkey;40(l) — Circumstances admissible to show previous unchaste character.
    In a prosecution for statutory rape upon a female between 15 and 18 years of age under Acts 35th Leg. (1918; 4th Called Sess.) c. 50, defendant was entitled to supplement direct evidence tending to show unchaste character in the prosecutrix by showing circumstances such as are often used by the prosecution in the proof of sexual relations, such as declarations of the prosecutrix, her association and relations with other men, and her opportunities for improper relations.
    5. Rape <&wkey;36 — Burden upon defendant to show specific acts of prior unchaste character and not reputation.
    In a prosecution for statutory rape upon a female between the ages of 15 and 18 under Acts 35th Leg. (1918; 4th Called Sess.) c. 50, where the defense was previous unchaste character, accused had the burden of showing her unchaste character, not by reputation, but by specific acts.
    6. Criminal law <&wkey;369(8) — Evidence of defendant’s illicit relations with wife prior to marriage inadmissible in rape case.
    , In a prosecution for statutory rape under Acts 35th Leg. (1918; 4th Called Sess.) c. 50, it was incompetent to introduce in evidence circumstances showing that defendant had been guilty of illicit intercourse with his wife prior to their marriage, since it tended to prove a different offense and was calculated to prejudice the rights of the defendant.
    Appeal from District Court, Reeves County; Chas. Gibbs, Judge.
    E. A. Norman was convicted of rape, and appeals.
    Reversed.
    Ben Palmer, of Pecos, R. D. Blaydes, of Ft. Stockton, and Hudspeth, Wallace & Harper, of El Paso, for appellant.
    R. H. Hamilton,-Asst. Atty. Gen., for the State.
   MORROW, P. J.

The offense Is statutory rape; punishment fixed at confinement in the penitentiary for 20 years.

The statute, as it relates to the present prosecution, defines the offense thus:

“Rape is * * * the earnal knowledge of a female under the age of eighteen years, other than the wife of the person, with or without her consent, and with or without the use of force, threats or frauds. Provided, that if the woman is fifteen years or over, the defendant may show ■ in consent cases, she was not of previous chaste character as a defense.” Acts of the Thirty-' Fifth Legislature, Fourth Called Session, c. 50.

This statute changed the definition of statutory rape, which previously fixed the limit of the age of consent at 15 years, and contained no proviso. In the instant case, the prosecutrix was over 15 years and under 18 years at the time the offense was charged to have been committed. There was evidence introduced that before the prosecutrix reached the age of 15 years, she had had carnal intercourse with the appellant and with other persons.

The court instructed the jury that the fact that she had had “intercourse with other men prior to her arrival at the age of 15 would constitute no justification of the offense.” He refused to instruct the jury upon the request of appellant, in substance, that if, at the time of the alleged offense, she was over 15 years of age -and was not of “previous chaste character, to acquit the appellant.” In an appropriate manner, these rulings are complained of and brought up for review.

That part of the statute declaring that in cases of consent where the woman is over 15 years of age, the defendant may show “she was not a previous chaste character as a defense” would seem to require no interpretation.

The Legislature apparently has selected appropriate language in which to declare that in such a ease, the prosecutrix being over 15 years of age when the act was Committed, and the proof showing that she was of previous unchaste character, no conviction can result. These facts, being established by the evidence and found to be true by the jury under suitable instructions, bring into operation the statute which protects the accused and bars the state.

The use of the word “defense,” as defined by lexicographers and the courts, it would seem, precludes any meaning of the statute other than this. Words and Phrases, Second Series, vol. 1, p. 1269.

A “chaste woman,” within the meaning of the law as applied to an unmarried woman, signifies one who has had no carnal knowledge of men. Cyc. of Law & Proc. vol. 6, p. 978; Words and Phrases, Second Series, vol. 1, p. 652; State v. Kelley, 191 Mo. 680, 90 S. W. 834; Kerr v. United States, 7 Ind. T. 486, 104 S. W. 809; Marshall v. Territory, 2 Okl. Cr. 136, 101 Pac. 139.

An “unchaste,” unmarried woman is one who has had carnal knowledge of men, within the meaning of the statute. State v. Dacke, 59 Wash. 239, 109 Pac. 1050, 30 L. R. A. (N. S.) 173; Woodruff v. State, 72 Neb. 815, 101 N. W. 1114; Bailey v. State, 57 Neb. 706, 78 N. W. 284, 73 Am. St. Rep. 540; State v. Sargent, 62 Wash. 692, 114 Pac. 368, 35 L. R. A. (N. S.) 173.

In all instances coming to our attention in wMcli the law recognizes as a defense to the charge of statutory rape the fact that the character of the female was unchaste, evidence of the want of chastity prior to the time she attained the age of consent is available. Ruling Case Law, vol. 22, p. 1190, § 22.

In Nebraska, the statute (Comp. St. 1911, § 7648) reads thus:

“If any male person, of the age of eighteen years or upward, shall carnally know or abuse any female child under the age of eighteen years, with her consent, unless such female child so known and abused is over fifteen years of age and previously unchaste, every such person so offending shall be deemed guilty of rape.” '

Construing this statute, the Supreme Court of Nebraska, in Bailey v. State, 57 Neb. 710, 78 N. W. 285, 73 Am. St. Rep. 543, held the evidence insufficient to sustain the conviction. The court said:

“The statute does not punish men for unlawful sexual relations with a prostitute over fifteen years of age, nor for such relations with a female who, though not a prostitute, has already submitted herself to the illicit embraces of a male capable of performing the copulative act.”

Upon the same subject, discussing a similar statute concerning seduction, the point being made that the female was unchaste because of acts committed while she was below the age of consent, as used in defining rape, the court said:

“Her favors might be common to all, yet she would b.e chaste by operation of law. Impure in fact, she would be pure by statute. * * * We do not think that the Legislature meant constructive chastity when it said previous chaste character, but that it meant chastity in fact, according to the popular sense of that word. Character pertains to the person, and is the distinguishing mark of what the person is. It is not founded on presumptions of law, but on good conduct.” People v. Nelson, 153 N. Y. 90, 46 N. E. 1042, 60 Am. St. Rep. 596.

The statute of this state in question was manifestly framed to preserve the purity of females under 18 years of age and to refrain from punishment for rape of one having intercourse with a female over 15 years of age whom the evidence showed to be unchaste at the time the alleged offense was committed. In construing this statute to preclude the use of evidence of unchaste conduct of the prose-cutrix prior to her attaining the age of 15 years as going to establish her unchastity, we are constrained to the belief that the learned trial judge was in error. Such construction seems incompatible with the statute itself.

In the case before us the prosecutrix became 15 years old on March 30th. The act relied on occurred in April. At the time the character of the prosecutrix, if unchaste, was a fact made by the statute available to the accused as a defense, but according to the construction given the statute, not provable for the reason that the acts revealing the unchas-tity occurred prior to the 30th of March, immediately preceding the alleged offense. To sanction such construction would apparently impute the intent of the lawmakers to give to the accused the right to prove a defense and at the same time render it impossible to do so, notwithstanding the facts were at hand. The Legislature intended that the right should be real, not fictitious, and did not design to declare one pure in law who was defiled in fact.

Appellant sought, by circumstances, to supplement the direct evidence tending to show unchaste character in the prosecutrix. These were of more or less cogency, but, such as they were, the court was not warranted in rejecting them. In furtherance of his effort to prove a defensive matter, circumstances, such as are often used by the prosecution in tie proof of sexual relations, were properly at appellant’s command. Upon him was the burden of showing her unchaste character, not by reputation, but by specific acts. Woodruff v. State, 72 Neb. 815, 101 N. W 1114; State v. Workman, 66 Wash. 292, 119 Pac. 751; Hast v. Territory, 5 Okl. Cr. 162, 114 Pac. 261; Dallas v. State, 76 Fla. 358, 79 South. 690, 3 A.L.R. 1457.

The scope of the evidence offered and rejected in the present case was within that recognized ás admissible under the law. Un-derhill on Crim. Evidence, § 381. It related to the declarations of the prosecutrix, her association and relations with other men, and her opportunities for improper relations. Por illustrations, see Coons v. State, 49 Tex. Cr. R. 256, 91 S. W. 1085; Snodgrass v. State, 36 Tex. Cr. R. 211, 36 S. W. 477; Creighton v. State, 41 Tex. Cr. R. 101, 51 S. W. 910; Davis v. State, 36 Tex. Cr R. 550, 38 S. W. 173; Nolan v. State, 48 Tex. Cr. R. 438, 88 S. W. 242; Bailey v. State, 36 Tex. Cr. R. 546, 38 S. W. 185; Barnes v. State, 37 Tex. Cr. R. 326, 39 S. W. 684; Parks v. State, 35 Tex. Cr. R. 380, 33 S. W. 872.

We think it was incompetent to introduce in evidence circumstances showing that the appellant had been guilty of illicit intercourse with his wife prior to their marriage. This was done by proving the date of the marriage and the birth of the child. The complaint of the use of this in argument we do not find supported by any bill of exceptions. The evidence was objected to, however, and should have been excluded. It was relevant to no issue in the case; it tended to prove a different offense and was calculated to prejudice the rights of the accused.

Prom what has been said, it follows that, in our opinion, a reversal should be ordered. 
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