Bibbs v. Commonwealth

106 S.E. 363, 129 Va. 768, 1921 Va. LEXIS 134

• Court: Supreme Court of Virginia
• Decided: March 17, 1921
• Status: Published

Opinion

Sims, J.,

after making the foregoing statement, delivered the following opinion of the court.

[1] It does not appear from the record whether t:he excluded evidence was concerning the specific acts of, or the general reputation of, the prosecutrix for unchastity. By the'great weight of authority, even if under the statute involved the accused had been entitled to introduce in his defense the bad character of the prosecutrix for chastity, the accused would have been restricted to proof of the general reputation of the prosecutrix in that regard — no evidence of specific acts of unchastity being admissible even in such case. We therefore assume that the excluded evidence offered by the accused was directed to the proof of such general reputation of the prosecutrix. So considering the matter, the sole question presented by the record in this case for our decision is the following:

• [2] 1. Did the trial court err in refusing to permit, the accused to introduce evidence to prove the bad general reputation of the prosecutrix for chastity?

This question must be answered in the negative.

[3-5] That the accused should have caused the prosecutrix to commit the misdemeanor mentioned in the warrant is not an essential element of the offense of which the accused was convicted. Under the statute involved, if the accused, who was over eighteen years of age, encouraged the prosecutrix, who was under the age of eighteen years, to commit the misdemeanor, he was guilty of the statutory offense. Now it appears from the record that the accused “admitted that he had carnal intercourse” with the prosecutrix. He therefore, in any aspect of the case, was a willing participant with her in the commission of the misdemeanor aforesaid. Such participation, in itself alone, as we think, encouraged the prosecutrix to commit such misdemeanor, and made the accused guilty under the statute. Even if it were true that the prosecutrix made the first advance, that did not justify the accused in encouraging her to commit the misdemeanor by yielding to her solicitation. When read along with other humane statutes of the State on the subject of the reclamation of those of an age making that effort possible of success in some cases, it is apparent that the general purpose of the statute involved in this case is one in aid of such rechmation. One of the specific mischiefs and evils against which the statute is directed is manifestly the aiding or abetting, by any one who has reached the age of discretion named in the statute of over eighteen years of age, the commission of “any misdemeanor” by a person who has not reached that age. The more depraved the latter person may be and the greater the disposition and inclination of the latter to commit the misdemeanor, the greater the need that all other persons, and certainly those who have reached an age of discretion, should not in any way encourage the immature person in the depraved conduct, least of all by participating in such conduct.

The assignment of error under consideration is based upon the mistaken position that although the prosecutrix was a child of the immature age mentioned.in the statute, and the accused was of the age of discretion mentioned therein of over eighteen years (being, indeed, thirty years of age), and if she was so depraved as to make the first advance toward the commision of the misdemeanor, the child must be regarded as having caused or encouraged the commisson of the misdemeanor and not the accused. This position regards the parties as of equal years of discretion, and as fitted to deal with each other on equal terms, and ignores the purpose of the statute aforesaid.

It is not claimed for the accused that there is any authority directly in point sustaining the assignment of error aforesaid; but the cases of Brown v. Smith, 72 Md. 468, 20 Atl. 186, and State v. Gibson, 111 Mo. 92, 19 S. W. 980, are relied on as strongly analogous. We do not consider these cases in point. As appears from a reading of them, the statutes there involved were very different from the Virginia statute under consideration, and the offenses created by those statutes are different from that of which the accused in the case before us stands convicted. The Maryland statute (Code, art. 27, sec. 1) involved in the Brown Case, made it a crime to “entice or persuade” a girl under the statutory age “from the custody or control of her parents for purposes of prostitutionwhereas the Virginia statute makes it a crime to “encourage” any child under the statutory age “to commit any misdemeanor.” The Missouri statute, involved in the Gibson Case, as therein held, made the previous chaste character of the prosecutrix an essential element of the offense.

The judgment under review will be affirmed.

Affirmed.