Opinion
No. 36188.
October 14, 1946.
CRIMINAL LAW.
A conviction of carnally knowing a female over 12 and under 18 would be reversed under statute providing that no person should be convicted upon uncorroborated testimony of injured female regarding her previous chaste character, where witnesses who testified as to then reputation of prosecutrix for chastity did not have sufficient opportunity to become familiar with such reputation as to be able to refute the testimony, facts, and circumstances tending to establish contrary theory (Code 1942, secs. 2359, 2360).
APPEAL from the circuit court of George county, HON. L.C. CORBAN, Judge.
O.F. J.O. Moss, both of Lucedale, and Earl L. Wingo, of Hattiesburg, for appellant.
The granting or refusing of a motion for continuance, properly supported by affidavit, is largely discretionary with the trial judge; but such discretion is abused in putting to trial a seventeen year old defendant without granting him an adequate or reasonable opportunity to prepare his defense to a charge alleged by the indictment to have been committed only eleven days prior thereto, especially where to such charge the defendant's sole defense is one requiring the literal ferreting out of evidence of a nature most witnesses are reluctant to give voluntarily, as in the present case.
Allgood v. State, 173 Miss. 27, 161 So. 756; Cruthirds v. State, 190 Miss. 892, 2 So.2d 145; Goins v. State, 155 Miss. 662, 124 So. 785; Hodgkin v. State, 172 Miss. 297, 160 So. 562; Jones v. State, 168 Miss. 702, 152 So. 479; Clayton et al. v. State (Ala.), 13 So.2d 411; Coker v. State, 82 Fla. 5, 89 So. 222; Code of 1942, Sec. 1520; Constitution of 1890, Art. 3, Sec. 26.
A petition to set judgment aside and grant a new trial based on the ground of material and non-cumulative newly discovered evidence shown by the affidavits of two witnesses stating the evidential facts to which they will testify, the sworn petition and affidavit of attorneys of record both showing such evidence was not known by either defendant or his attorneys at the time of the trial after the exercise of due diligence to discover same, is erroneously overruled by the trial judge, and is particularly erroneously overruled where a properly supported motion for continuance was made, and overruled, prior to trial requesting time to investigate for and obtain just such material evidence, neither the defendant or his attorneys having had a reasonable opportunity to do so prior to trial.
Barrentine v. State (Miss.), 51 So. 275; De Angelo v. State, 187 Miss. 84, 192 So. 444; Richardson v. State, 68 Miss. 349, 8 So. 744; Williams v. State, 99 Miss. 274, 54 So. 857.
Where the evidence fails to show a defendant's guilt beyond a reasonable doubt, the court should grant the defendant's requested peremptory instruction; and overruling a defendant's motion for a new trial on ground evidence was insufficient to sustain conviction is reversible error where evidence fails to show defendant's guilt beyond a reasonable doubt.
Johnson v. State, 136 Miss. 775, 101 So. 685; Code of 1942, Sec. 2360.
On a trial for statutory rape, it is prejudicial error to admit the uncorroborated testimony of the prosecutrix that the defendant used a pistol as a threat to force her into the act where her other testimony and circumstantial evidence rebut her denial of consent, and where the defendant admits the occurrence of the act with the consent and cooperation of the prosecutrix.
Baygents v. State, 144 Miss. 442, 110 So. 114; Brown v. State, 72 Miss. 997, 17 So. 278; Collier v. State, 106 Miss. 613, 64 So. 373; Floyd v. State, 166 Miss. 15, 148 So. 226; McLin v. State, 150 Miss. 159, 116 So. 533; Whitlock v. State (Miss.), 6 So. 237; Willoughby v. State, 154 Miss. 653, 122 So. 757, 63 A.L.R. 1319.
Once a juvenile court of a county is vested with jurisdiction over a juvenile delinquent, it is error for the circuit court of said county to assume or re-assume jurisdiction in the matter without the juvenile court's first making a proper disposition.
Harris v. State (Ala.), 129 So. 795, 78 A.L.R. 322; Code of 1942, Title 26, Chap. 1, Art. 4, Secs. 7185-7213.
Whenever the defendant introduces proof directly impeaching her chastity, or where from all the evidence it may be presumed that the female was unchaste, then it devolves upon the State to prove the whole case beyond a reasonable doubt, including chastity.
Johnson v. State, supra; Code of 1942, Secs. 2359, 2360. Greek L. Rice, Attorney General, by R.O. Arrington, Assistant Attorney General, for appellee.
The appellant, Alton Barker (alias "Red Betty") was indicted in the circuit court of George County, Mississippi, for violation of the age of consent statute.
Code of 1942, Sec. 2359.
There is only one issue in this case and that is the previous chaste character of the prosecutrix. The prosecutrix was sixteen years of age at the time of the unlawful act. Therefore the statute presumes she was of chaste character.
Code of 1942, Sec. 2360.
The only evidence introduced by the appellant with reference to the chastity of the prosecutrix was the testimony of two character witnesses: J.B. Gibson, who testified that her general reputation in the community for chastity was bad, and C.E. Coleman, who testified likewise. When the defense rested, the state introduced two witnesses in rebuttal, who testified that her general reputation for chastity was good: Tom K. Moody and Ray Hamilton, the latter a Baptist minister who testified that her reputation for chastity was good and that he had never heard her reputation discussed. This evidence by the state's witnesses was, of course, sufficient to make a question for the determination of the jury.
King v. State, 121 Miss. 230, 83 So. 164; Smith v. State, 188 Miss. 339, 194 So. 922.
Counsel for appellant contends, however, that the witnesses for the State, who testified as to the prosecutrix' general reputation for chastity in the community in which she lived, should be discounted for the reason that they testified that they had never heard her character discussed. Our court has held that this is the best evidence as to a person's character, that they had never heard anything against a person. A witness may well say that he knows the general reputation of a person, and that it is good, if he has known the person long and well and never heard his character questioned, and such testimony is admissible to prove good character.
Williams v. State, 119 Miss. 559, 81 So. 238.
This was a question for the jury, and the credibility of the witnesses and the weight to be given their testimony are within the province of the jury.
Ells v. State, 159 Miss. 567, 132 So. 572.
The motion for continuance was properly overruled. The affidavit for continuance is based on the fact that the appellant and his attorneys did not have time, during the then present term of court, to investigate the previous chaste character of the prosecutrix. The affidavit for continuance was filed on the 19th day of February, 1946, and asked that the cause be continued for the term. The court overruled the motion and set the case for trial the following Monday, February 25, 1946, thereby giving the appellant and his attorneys practically a week's time to prepare for trial. The record shows that the crime was committed on February 7, 1946, and that complaint was made on February 8, 1946, and the appellant was indicted at the following regular term of the circuit court of George County on February 19, 1946, and that, after appellant was arraigned, he was given a week's time to prepare for trial. The main contention of counsel in seeking a continuance was the fact that they were busy. Our court has held in a number of cases that this is not sufficient to justify a continuance, at least for a whole term of court, and that this was a matter which comes within the discretion of the trial court.
Goins v. State, 155 Miss. 662, 124 So. 785; McClellan v. State, 183 Miss. 184, 184 So. 307.
The overruling of the motion to set aside the judgment and grant a new trial, based on newly discovered evidence, was proper. The motion appears to have been filed on the 2nd day of March, 1946, at a time after the term of court had finally adjourned. The appellant's motion was, therefore, too late as it could not be filed or entertained after the regular term of court had adjourned.
Pittman v. State, 147 Miss. 593, 113 So. 348.
The overruling of the motion to exclude the State's evidence and discharge the appellant was proper. What has been heretofore said is sufficient to show that the lower court was correct in its ruling and especially so when the appellant later took the stand and admitted the act.
No error was committed by the court in permitting the prosecutrix to testify, over objections, that the appellant had a pistol at the time of the act and forced her to comply with his wishes. In this case everything that transpired during the commission of this act was admissible under the rule of res gestae.
Whittington v. State, 160 Miss. 705, 135 So. 190.
The appellant was convicted and sentenced to serve a term of eighteen months in the state penitentiary under Section 2359, Code of 1942, which provides, among other things, that "Any male person who shall have carnal knowledge of any unmarried female person of previously chaste character younger than himself, and over twelve and under eighteen years of age, upon conviction, shall be punished" within certain limitations that may be fixed by the jury.
Section 2360, Code of 1942, provides that: "In the trial of all cases under the last preceding section, it shall be presumed that the female was previously of chaste character, and the burden shall be upon the defendant to show that she was not; but no person shall be convicted upon the uncorroborated testimony of the injured female."
In the instant case, the testimony of the prosecutrix was virtually uncorroborated as to her previously chaste character, whereas the defendant introduced two witnesses who resided in the locality where she lived who testified that her previous reputation for chastity was bad. Moreover, all of the facts and circumstances in connection with the occasion complained of, when considered in connection with the testimony of the prosecutrix, are not sufficient to meet the challenge of the defendant as to her previous chastity. Her testimony on this vital issue is corroborated some by that of two witnesses, one of whom lived a distance of twenty and the other eight miles from the community where she resides. The former had not lived near her within the past four years, and it seems that the work of the latter prevented his being in that locality except infrequently.
In Wigmore on Evidence, Vol. 3, 3rd Ed., under Section 692 (Annotations), it is said that: "The general character is the estimation in which a person is held in the community where he has resided, and ordinarily the members of that community are the only proper witnesses to testify as to such character." Douglass v. Tousey, 2 Wend., N.Y., 352, 354, 20 Am. Dec. 616. And, while it may be that in these days of easy transportation when people are not only acquainted with what is going on in their own community but also in many others, a witness as to general reputation should not necessarily reside in the community where the subject of the inquiry may live, we are nevertheless of the opinion that under the facts of this particular case the two witnesses who testified as to the then reputation of the prosecutrix for chastity have not had sufficient opportunity to become familiar with such reputation as to be able to refute the testimony and the facts and circumstances tending to establish the contrary theory.
In other words, we are of the opinion that the verdict in this case is contrary to the greater weight of the evidence on this particular issue, and that the motion for a new trial should have been sustained. We do not take into account the second motion of the defendant for a new trial, which was filed after the adjournment of the court, on the ground of newly discovered evidence on this issue.
We have refrained from commenting on the facts in detail for the reason that, from what has been hereinabove stated, a new trial should be ordered. We will say, however, that no reversible error was committed as to the admission of any of the testimony. That to which serious objection was made by the defendant was a part of the res gestae and fully competent.
Reversed and remanded.
Sydney Smith, C.J., did not participate in this decision.