Opinion
No. 27659.
February 25, 1929. Suggestion of Error Overruled March 11, 1929.
1. RAPE. One may be indicted and convicted for rape on prosecutrix's uncorroborated testimony ( Hemingway's Code 1927, section 1147).
Under Code 1906, section 1358 (Hemingway's Code 1927, section 1147), one may be indicted and convicted for rape on prosecutrix's uncorroborated testimony.
2. RAPE. Prosecutrix's testimony, corroborated as to material physical facts, held sufficient to support conviction of rape ( Hemingway's Code 1927, section 1147).
Prosecutrix's testimony, corroborated by testimony of other witnesses as to material physical facts, though not as to her assailant's identity, held sufficient to support conviction of rape, under Code 1906, section 1358 (Hemingway's Code 1927, section 1147).
3. CRIMINAL LAW. Denial of continuance for denial of access to or communication with relatives held not prejudicial error, in absence of showing that defendant was denied free communication with counsel, or that any valuable witness was not present at trial.
Refusal of continuance, on affidavit of defendant, his wife, sister, and brother-in-law, that he had been confined in jail and denied all access to or communication with them since his arrest, and was therefore unable to prepare for defense, held not prejudicial error, where he was represented by same counsel at both preliminary hearing and trial, his coaffiants testified at trial, and no effort was made to show that he was denied free access to and communication with counsel before and during term of court, that latter had been hindered or delayed in preparing defense, or that any witness of value to defense was not present in court at time of trial.
4. WITNESSES. Court should have determined four-year-old girl's competency by preliminary examination, before permitting her to testify.
In trial for rape, court should have determined competency of prosecutrix's four-year-old daughter as witness by preliminary examination, before permitting her to testify before jury as to facts material to issues.
5. CRIMINAL LAW. Examination of four-year-old girl, without preliminary examination to determine her competency, held not reversible error, where court excluded, and instructed jury to disregard, her testimony.
Examination of prosecutrix's four-year-old daughter before jury, without first conducting preliminary examination to determine her capacity as witness, held not reversible error, where court excluded her testimony, and instructed jury not to consider it, on concluding that she did not have such capacity, as would have been his duty had such preliminary examination been had.
6. CRIMINAL LAW. Defendant, eliciting only testimony of child tending to identify him as prosecutrix's assailant, cannot complain of error in permitting examination of witness, without first determining her competency.
Where prosecutrix's four year old daughter testified to nothing tending to identify defendant as prosecutrix's assailant until cross-examination by defendant's counsel as to whom she saw in house, defendant cannot complain on appeal that court erred in permitting her to be examined before jury without first determining her competency as witness by preliminary examination, especially where court excluded all her testimony and instructed jury to disregard it.
7. CRIMINAL LAW. Bill of exceptions to district attorney's argument never became part of record, where not signed by attorneys present when judge refused to sign it ( Hemingway's Code 1927, sections 594, 600).
Special bill of exceptions to district attorney's argument never became part of record on appeal, where not signed, as required by Code 1906, section 798 (Hemingway's Code 1927, section 600), by two attorneys present at time of trial judge's refusal to sign it, when tendered as provided by Code 1906, section 796 (Hemingway's Code 1927, section 594), but sent up with counsel's affidavit as to language and incidents incorporated therein.
8. CRIMINAL LAW. Supreme Court can consider only matters properly part of record.
The Supreme Court can consider only matters which are properly a part of the record before it.
9. CRIMINAL LAW. Court cannot aid counsel, unable because of circumstances to secure required signature of two attorneys to bill of exceptions, which judge refused to sign, in absence of statutory authority ( Hemingway's Code 1927, section 600).
The Supreme Court, in absence of statutory authority, cannot aid counsel, unable because of circumstances to secure signature of two attorneys to bill of exceptions, which judge refused to sign, as required by Code 1906, section 798 (Hemingway's Code 1927, section 600).
APPEAL from circuit court of Perry county, HON. B.F. CARTER, Special Judge.
A.T.L. Watkins, for appellant.
If an accused can be shut up in jail and refused access to his family and friends, that he may make preparations for his trial, then we try causes by public opinion and not fairly and impartially. We have never known this to happen before.
To sustain a conviction the evidence of the injured female must be corroborated, on all material facts and circumstances. If it appears incredible, a judgment of guilty should be reversed. Underhill on Criminal Evidence (3 Ed.), sec. 617. Substantial evidence in addition to that of prosecutrix tending to point out the identity of accused, is necessary to establish his identity. Rawls v. State, 62 So. 420.
It is the province of the trial judge, to determine whether or not an infant is competent as a witness, before being permitted to testify before the jury. 7 Ency. of Evidence, 278, subsec. 50. The judge should have examined the child in the absence of the jury before she testified, and not wait until after she had testified; and then attempted to remove the effects from the mind of the jury. Whatever impressions that had been made by the testimony could not be erased subsequently from the minds of the jury.
Competency, as applied to witnesses involves both capacity and qualifications and imports the existence of all essentials to render her fit to testify. Crockett v. Cassell, 116 So. 865; Hunter v. State, 102 So. 282; Row v. State, 98 So. 613; Clinton v. State, 43 So. 312; Hall v. State, 96 So. 644; Carter v. State, 88 So. 571; Crenshaw v. State, 87 So. 328; State v. Comeaux, 77 So. 489.
James W. Cassedy, Jr., Assistant Attorney-General for the state.
It is argued by the appellant that the prosecutrix was not corroborated and that her evidence is insufficient to support the verdict. In Sanders v. State, 150 Miss. 296, 116 So. 433, it was held that one indicted under sec. 1147 Hem. Code 1927, for forcibly ravishing prosecutrix, may be convicted on her uncorroborated testimony. The appellant in the case at bar was indicted under this same section. The facts in the case at bar are very similar to the facts in the Sanders cases, with the exception that there are several physical facts in the case at bar which corroborate the testimony of the prosecutrix.
The appellant argues that it was error for the court to permit the small child of the prosecutrix to testify. In answer to this contention, it will appear from the record that the court sustained the appellant's objection to the testimony of the child, and that the jury was instructed not to consider anything which the child had said.
Appellant contends that the court erred in failing to sign the bill of exceptions. The appellant failed to obtain two attorneys who were present at the time to sign the bill of exceptions. It therefore appears that the bill of exceptions is not a part of the record, and that the appellant has failed to make it a part of the record by the method prescribed when the trial judge refuses to sign it.
Argued orally by A.T.L. Watkins, for appellant, and James W. Cassedy, Jr., for the state.
At the September, 1928, term of the circuit court of Perry county, the appellant, Caesar Fairley, was indicted, tried, and convicted of rape, and was sentenced to the state penitentiary for life, and from this conviction and sentence he prosecuted this appeal.
We do not think it would serve any useful purpose to state the facts shown by this record. The appellant assigns as error the refusal of the court below to grant him a peremptory instruction, and counsel seems to argue that the testimony was not sufficient to support the verdict. The appellant was indicted under section 1358, Code of 1906 (section 1147 of Hemingway's 1927 Code), and it is well settled that under this section a person may be indicted and convicted on the uncorroborated testimony of the prosecutrix. In the case at bar the prosecutrix was not corroborated as to the identity of her assailant, but as to other material facts she was corroborated by the testimony of other witnesses as to physical facts. The testimony was sufficient to support the verdict, and therefore there was no error in refusing the peremptory instruction requested by the appellant.
The appellant assigns as error the refusal of the court to grant him a continuance on an affidavit, signed by himself, his wife, sister, and brother-in-law, stating that he was arrested on the 12th day of August, 1928, and since that date had been confined in jail, and denied all access to or communication with his said wife, sister, and brother-in-law, and therefore had been unable to prepare for his defense. At the trial the appellant was represented by counsel, and it appears from the record that he was represented by the same counsel at a preliminary hearing before a committing magistrate, and there was no effort to show that appellant had been denied free access to, and communication with his counsel prior to and during the term of court, or that counsel had been in any way hindered or delayed in preparing appellant's defense. The three relatives who joined in the affidavit seeking a continuance testified at the trial, and there was no attempt to show that any witness who might have been of value to the defense was not present in the court at the time of the trial. Other than the general statement that the appellant had been unable to prepare for his defense, there was no effort to show wherein he had been prejudiced, and now, looking at the completed record of the trial, we are unable to see that he was prejudiced by anything set forth in the affidavit for a continuance.
At the trial the state offered as a witness the four-year-old daughter of the prosecutrix, and without conducting a preliminary examination of this child, to determine her capacity to testify as a witness, the court permitted her to be examined before the jury. After the state had concluded its examination of this witness, counsel for the appellant asked her a number of questions, and thereupon the court, without further request, excluded her testimony and instructed the jury not to consider anything she had said. Appellant now assigns as error the action of the court in permitting this child to be examined before the jury, and contends that the error could not be cured by excluding her testimony and instructing the jury to disregard it. It is true that the court should have determined the competency of the child as a witness before permitting her to testify before the jury to facts material to the issues in controversy; but, where such preliminary examination was had, it would still be the duty of the court to exclude the testimony of the witness, if it developed during the examination that the witness did not have the capacity to testify. Under the rules for determining the capacity of a witness to testify, as announced in the case of Peters v. State, 106 Miss. 333, 63 So. 666, we think that the court was correct in the conclusion that this witness did not have the capacity to give testimony, and, having reached that conclusion, the court did all it was requested to do to correct the error, by excluding the testimony and instructing the jury not to consider anything she had said, and, this being true, we do not think the examination of this witness before the jury constituted reversible error.
We are strengthened in this conclusion by the fact that, up to the time the state concluded its examination of this witness, she had not testified to any fact which tended to incriminate the appellant. She had testified to facts which corroborated her mother as to the fact of an assault being committed upon her, but nothing that tended to identify the appellant as the assailant. When counsel for appellant took the witness on cross-examination, among the first questions asked her were the following: "Q. You did not see any one in the house, did you? A. Yes. Q. Who was it? A. Caesar Fairley." Since the appellant developed from the witness the only evidence that was prejudicial to him, he is not now in position to complain, especially in view of the fact that the court excluded all of the witness' testimony, and instructed the jury to disregard it.
The appellant also complains of certain language alledged to have been used by the district attorney in the closing argument to the jury, but this assignment is not properly presented by this record. The record discloses that counsel for the appellant tendered to the trial judge a special bill of exceptions embodying the alleged objectionable language, but the judge refused to sign this bill of exceptions. Counsel for appellant then made and filed an affidavit setting forth his version of the language and the incidents attempted to be incorporated in the special bill of exceptions, and this affidavit and the form of the bill of exceptions that was tendered the trial judge are sent up with the record of this cause.
Section 796, Code of 1906 (section 594, Hemingway's 1927 Code), provides that bills of exception to any ruling of the court, made before the jury retires from the box, must be tendered and filed during the trial, or during the term of the court; while section 798, Code of 1906 (section 600, Hemingway's 1927 Code), provides that, "if the judge shall refuse to sign a bill of exceptions to an opinion, decision, or charge given or made on the trial of any cause or motion, when the bill of exceptions is tendered to him, it shall be lawful for two attorneys at law who may be present at the time of the giving or making of such opinion, decision, or charge, and of the refusal of the judge to sign such bill of exceptions, to sign the same; and the bill of exceptions so signed shall have the same force and effect as if it had been signed by the judge," and it has been held that the latter statute provides the only remedy where the judge refuses to sign such a bill of exceptions. The purported special bill of exceptions, therefore, never became a part of the record, and we can only consider matters which are properly a part of the record before us. If, as stated by counsel for appellant, circumstances made it impossible to secure the signature of two attorneys to the bill of exceptions, we are unable to aid him, in the absence of statutory authority so to do.
None of the other assignments of error present any reversible error, and therefore the judgment of the court below must be affirmed.
Affirmed.