#### The State vs. Seiler.

*March*3

March *20, 1900.*

*Criminal law and practice: Fornication: Validity of statute: Discretion as to offense: “ Man*” *defined: Evidence: Previous chaste character: . Corroboration.*

1. Sec. 4580, Stats. 1898, as amended by cb. 99, Laws of 1899 (providing, first, that if any man commits fornication with a sane female over the age of fourteen each shall be punished by imprisonment in the county jail, etc.; and, second, that if any man commits fornication with a sane female of previous chaste character under the age of eighteen years, he shall be punished by imprisonment in the state prison, etc.), is a valid enactment so far as it provides a punishment for the latter offense; and the fact that’it leaves some discretion in the prosecuting officer in some cases whether to prosecute under one clause or the other does not affect its validity. *State v. Went-ler,*76 Wis. 89, distinguished.

2. The word “ man,” as used in said statutes, is not limited to male xser-sons over twenty-one years of age, but includes male persons who have arrived at the age of puberty, or are capable of committing fornication. 1

3. An information contained two counts,— the first charging rape and the second fornication with a sane female of previous chaste char*347acter under eighteen years of age. The prosecutrix was between fifteen and sixteen years of age, and testified to an atrocious attack upon her. Her testimony that she was of previous chaste character was uncorroborated. The defendant admitted the intercourse, but claimed that it was with her consent. At the close of the testimony the district attorney withdrew the charge of rape, and the jury found the defendant guilty on the second count. Held, that, although this finding negatived the use of force and thus tended to discredit the testimony of the prosecutrix, yet her testimony as to previous chaste character was still in the case and might support the verdict.

4. In a prosecution for fornication with a sane female of previous chaste character under the age of eighteen years, corroboration of her testimony as to chastity is not required in order to sustain a conviction.

RepoRtbd from the circuit court for Dunn county: E. *~W.*Helms, Circuit Judge.

*Questions answered i/n ike affirma,-tive.*

Eor the plaintiff there was a brief by the *Attorney*General, and oral argument by *O. E.*Buell, first assistant attorney general.

Eor the defendant there was a brief by *E. B. dk B. E. Bundy,*and oral argument by *B. E. Bundy.*

Bardeen, J.

The information contains two counts. The first charges the defendant with the crime of rape; the second, with having committed fornication with a female of the age of fifteen years, of previous chaste character. Upon the trial the complaining witness testified that defendant assaulted her, choked her into insensibility, and then accomplished his purpose. The defendant admitted the sexual act, but swore that it was with her consent. The complaining witness was between fifteen and sixteen years of age, and the defendant between twenty and twenty-one. At the close of the testimony the district attorney withdrew the charge of rape. The court charged the jury that there was no evidence of the complainant’s previous chaste *348character, except her own. The verdict was, “ Guilty as charged in the second count.” At the request of defendant, the trial court has reported the case to this court, under sec. 4721, Stats. 1898, upon the following questions: “ First. Is section 4580 of the Revised Statutes, as amended by chapter 99 of the Laws of 1899, a valid enactment so far as it provides a punishment for fornication with a sane female of previous chaste character under the age of eighteen years? Second. Can a male person not twenty-one years old be convicted, under said section as amended, of the charge of fornication with a sane female of previous chaste character under the age of eighteen years, as charged in said second count? Third. Is the unsupported testimony of the female with whom the offense is alleged to have been committed, given under the circumstances above set forth, sufficient to justify the finding of a jury that she was, at the time the offense is alleged to have been committed, of previous chaste character? ”

1. The defendant argues that the statute in question is invalid, because the same act is declared by it to be both a felony and a misdemeanor, and it is within the discretion of the district attorney to sa.y under which clause the offending'party shall be prosecuted. The first clause of the law reads as follows: “Any inan who commits fornication with a sane female, over the age of fourteen years, each of them shall be punished by imprisonment in *the county jail, not*more than six months, or by a fine not exceeding one hundred dollars.” This clause was not changed by the amendment of 1899. The second clause wras amended by changing the word “fourteen” to “eighteen,” so that it now reads as follows: “Any man who commits fornication with a sane female of previous chaste character under the age of eighteen years, shall be punished by imprisonment in the state prison not more than four years, or by fine not exceeding five hundred dollars, or by both fine and imprisonment.” The argu*349ment is that a man may commit the act with a female between the age of fourteen and eighteen years, and the district attorney, by using or omitting to use the words *“*of previous chaste character,” may prosecute for a felony or a misdemeanor as be pleases, and hence the law'is invalid, under the case of *State v. Wentler,*76 Wis. 89. That case has a very remote application to the facts here presented. The law there under consideration was held invalid because of the uncertainty and confusion in which it would involve the administration of the criminal laws of the state, if held valid. No such result is here involved. The statute is plain and unambiguous. It leads to no such confusion or uncertainty as there suggested. The only possible objection is that it leaves some discretion in the prosecuting officer, in determining whether he shall, in certain cases, bring his prosecution under the one or the other of these clauses. It may be unwise to so frame laws that any such result will follow, but’ does that fact make the act an invalid law ? In the administration of criminal laws the officer in charge of prosecutions is frequently called upon to decide which of two offenses he believes has been committed. The same act under one set of circumstances may call for one penalty, and under .different circumstances for another. The intent very frequently increases the grade of the offense. In all such cases the officer charged with the duty of enforcing penal laws is called upon to determine the grade of the crime committed, and to institute the proper prosecution. No system of criminal jurisprudence can be devised that will relieve him entirely from the exercise of some discretion. There are many statutes which call for its exercise, but it is unnecessary to review them at length. According to legislative conception, it was a graver offense for a man to commit fornication with a female of previous chaste character than it was to commit the same act with one whose chastity was questionable. The severity of punishment rests entirely with the *350trial court, after guilt has been, established. When the previous chastity of the female is set forth and proven, the transgressing male must face the penalty prescribed, if the female is under eighteen. The fact that he *might*have been prosecuted under the first clause of the law is not sufficient reason for holding the whole statute, or any part of it, invalid.

2. The defendant’s contention as regards the second question arises in regard to the use of the word “ man ” in the statute. The argument is that the word “man” means a male adult, as distinguished from a woman or a boy. Undoubtedly, this is the usual definition given by the lexicographers. The defendant carries the argument farther, however, and claims that the word “ adult ” means a man of full age. Hence the conclusion is that the use of the word “ man,” in the statute, must be limited to a male person over the age of twenty-one years, and the defendant, lacking a few months of that age, cannot be held liable for the offense charged. In determining the intention of the *legislature in*the use of this word, it is proper to ascertain the spirit of the act, and the mischief or vice aimed at. No one can doubt but that the object of the legislature was to prevent the illicit intercourse of the sexes, and the consequent evils. In law, the word “ man” frequently has a broader and more comprehensive meaning than usually given in the dictionaries. Much depends upon the context and the object sought to be attained. In some of its uses, it is construed to mean “ all human beings, or any human being, whether male or female.” And. law Diet. Another law writer says: “Man is a human being; a person of the male sex; a male of the human species above the age of puberty.” Douvier. “A human being of the male sex who has arrived at the age of puberty.” Kapalje *&*Lawrence. In *Kenyon v. People,*26 N. Y. 211, construing the statute in regard to seduction, which says, “ any man who shall, under promise of marriage, *351seduce,” etc., Judge Baloom says: “ The prisoner’s counsel insisted on the trial and in the supreme court, and has argued here, 'that the word ‘ man,’ as used in the statute referred to, means a male person twenty-one years of age. This is too technical and limited a meaning to be applied to the word, in the connection wherein it is used. It has a broader and a more comprehensive signification. The apparent spirit of the act, and the mischief or vice aimed at by the legislature, clearly show that the word £ man,’ as used in the statute, means a male person who has arrived at the age of puberty, or is capable of committing rape.” The language is directly applicable to the statute in question, and we adopt'the conclusion stated, as the only one the legislature could have had in view when it was enacted. There is quite as good reason for curbing .the impetuosity of youth as for laying the ban upon men of maturer years.

3. The third interrogatory raises the question whether the uncorroborated testimony of the female as to her previous chaste character, under the circumstances stated, is sufficient to sustain a conviction. The girl was between fifteen and sixteen years of age. She had testified to an atrocious attach upon her. The defendant admitted the intercourse, and testified thát it was with her consent. The district attorney for some reason withdrew the charge of rape, and submitted the question of fornication. Now, because the finding of guilt negatives the use of force and implies consent, it is argued that her whole story must have been false. It certainly tended to discredit her testimony; yet her evidence as to previous chaste character was still in the case, and was a matter for the consideration of the jury. The jury wTere not permitted to pass upon the truth of her statement as to the assault, except in an indirect way, and it by no means follows that her entire testimony should be discredited. At least, it is not so palpably false as would justify the court in saying that there was no testimony to sup*352port tbe verdict. There is no rule of law in this state that requires her testimony to be corroborated. See *Wilcox v. State,*102 Wis. 650. The jury saw the witness, and were in possession of all the facts and circumstances of the case. Their conclusion should stand unless we can say, as a matter of law, that it should not. Under the circumstances disclosed we do not feel justified in arriving at that conclusion.

Each of the questions submitted is answered in the affirmative.

*By the*Court.— So ordered.