Under the record presented on this appeal, it appears to me the conviction of defendant should be set aside and retrial ordered.
Defendant's counsel timely urged before the trial court that it was essential to a fair trial of the defendant that the prosecuting attorney should designate "the particular act or transaction" upon which the prosecution relied; and "the court should not permit the jury to speculate and say at some time, somewhere, that this respondent had had intercourse *Page 176 with the prosecutrix." In this connection the circuit judge said:
"I had always supposed that a man being placed on trial for crime would be entitled to have it made perfectly clear to him, either by a bill of particulars or at least by evidence on trial, as to the exact time and place it is claimed he committed the crime upon which the prosecution relied for a conviction.
"I realize that the people are not held to exact proof of the precise date alleged, but the people are bound at some time, before or in the trial, to indicate the transaction, to select one particular transaction. * * *
"I have been almost constantly engaged in the trial of criminal cases in this court these many years, and this is the first case that has ever come to my notice within my experience in which the prosecution did not point out the occasion, the transaction, something peculiar, something that would fix it and give it individuality."
Immediately following the above remarks of the court the assistant attorney general in charge of the prosecution said:
"I think, your honor, the little girl has fixed it some time along the latter part of January or fore part of February, just as near as she could. * * * Here is an occurrence that has been going on for two years. It had got to be a habit, if her testimony is true. There would be nothing to fix in her mind any one particular act."
Unquestionably the foregoing statements of the trial judge were in accord with the established law of this jurisdiction. It is not necessary to prove the exact day or date, but the particular act of sexual intercourse relied upon by the prosecution must in some manner be identified. Notwithstanding this well-settled rule of law, the prosecution did not make *Page 177 a definite election of a specific offense for which the defendant was being prosecuted, except to state that it was an act which occurred "on or about the first of February, 1931." The case went to the jury under the charge of the court wherein it was correctly stated:
"The State does not attempt to fix the exact, precise date, and the State is not required to fix the exact calendar date, but the State is required to rely upon some one transaction for a conviction. * * * Any man accused of crime is entitled to be advised as to the nature of the accusation, of the time and place that the act is claimed to have been committed, so that if he has a defense he may prepare to meet such accusation."
But immediately preceding the above-quoted portion of the charge, the court had said to the jury:
"It is the claim of the people, the prosecution, that this was one of the last acts or possibly the last act of that sort of a large — long series of sexual acts between these same parties during the period of two years. and upwards."
And the circuit judge in this connection also charged:
"The theory and claim of the State in this case is, that this offense was committed repeatedly in the same place, the same room, the same house, at about the same hour of the day,and without giving or attempting to give you any particular —especially particular details as to the particular transactionor occasion on which the State relies for a conviction, it isleft to you to say whether or not on or about the 1st of February, in this room, in that home where these parties lived, this respondent and his stepdaughter, the girl Lucile, had sexual relations, and whether or not at that time she was under 16." *Page 178
That the defendant was prejudiced by having his case thus submitted to the jury cannot be doubted, in view of the character of the testimony of the prosecutrix, which in part was as follows:
"I first had intercourse with my stepfather two or three years ago. * * * I claim from that time on up to the first of February we had intercourse once or twice a week; and the only time we had intercourse was in the house in the bedroom upstairs, about seven o'clock in the morning, * * * when I was going to school it was before I went to school and I went to school right along. * * * I don't remember what day in February it was I had intercourse with my stepfather. I don't know whether it was about the first of February — what day of the week it was. It was on a school day before I went to school."
The record is barren of any testimony except that of the prosecutrix tending to identify the act of intercourse relied upon by the prosecution. In this case wherein the prosecution was claiming there were numerous acts of sexual intercourse within a few weeks either prior to or subsequent to February 1, 1931, the manner in which the case was submitted to the jury made it possible, and even probable, that defendant was convicted without the jurors being able to agree upon any particular or specific occasion on which the offense charged was committed. Under the record we are constrained to hold there was prejudicial error.
Consideration of numerous other reasons assigned in support of the appeal has not disclosed reversible error; but for the reason above noted the conviction should be set aside and a new trial granted.
POTTER and FEAD, JJ., concurred with NORTH, J. *Page 179