Lee v. State

Full title: LEE v. STATE

Court: Supreme Court of Mississippi, In Banc

Date published: Apr 14, 1947

201 Miss. 423 (Miss. 1947)

29 So. 2d 211

Opinion

No. 36278.

February 24, 1947. Suggestion of Error Overruled April 14, 1947.

1. CRIMINAL LAW.

Conflicting evidence sustained trial court's conclusion that confession of assault with intent to ravish a female was voluntarily made and was therefore admissible (Code 1942, sec. 2361).

2. BURGLARY.

A burglarious breaking is evidence of some unlawful purpose.

3. CRIMINAL LAW.

In prosecution for assault with intent to ravish, voluntary confession supported testimony adduced aliunde in establishing corpus delicti, where it was shown that room had been burglariously entered and assault and battery committed upon the female (Code 1942, sec. 2361).

4. CRIMINAL LAW.

In prosecution for assault with intent to ravish, testimony that witness saw about time of the assault some one dressed in dark trousers "dart around the corner" of witness' house, which was two doors away from that of the victim was properly admitted as incriminating (Code 1942, sec. 2361).

5. CRIMINAL LAW.

In prosecution for assault with intent to ravish, alleged error in admitting testimony that witness saw about time of the assault some one dressed in dark trousers "dart around the corner" of witness' house, which was two doors away from that of victim was harmless (Code 1942, sec. 2361).

6. CRIMINAL LAW.

In prosecution for assault with intent to ravish a female of previous chaste character, allowing State's motion to reopen to introduce testimony State had overlooked in direct examination of victim and her mother to establish previous chastity was not an abuse of discretion where ample opportunity for cross-examination was allowed, and such proof was an element of accusation of which accused had been duly informed (Code 1942, sec. 2361).

7. CRIMINAL LAW.

Accused was not improperly sentenced under statute providing for punishment for assault with intent to ravish a female of previous chaste character merely because accused could have been prosecuted and sentenced under statute for assault and battery with a deadly weapon with intent to ravish or under another statute for an attempt (Code 1942, secs. 2011, 2017, 2361).

ON SUGGESTION OF ERROR. (In Banc. April 14, 1947.) [30 So.2d 74. No. 36278.]

CRIMINAL LAW.

An accused who denied having made a confession testified to by officers could not contend that confession was not freely and voluntarily made, and that testimony thereof was therefore improperly admitted.

APPEAL from the circuit court of Hinds county. HON. HUGH B. GILLESPIE, J.

Will S. Wells, of Jackson, for appellant.

The corpus delicti must be proved aliunde the confession of the accused.

Rayborn v. State, 115 Miss. 730, 76 So. 639; Owen v. State, 159 Miss. 588, 132 So. 753; Williams v. State, 129 Miss. 469, 92 So. 584; Butler v. State, 129 Miss. 778, 93 So. 3; Miller v. State, 129 Miss. 774, 93 So. 2; Walker v. State, 127 Miss. 246, 89 So. 921; Jenkins v. State, 98 Miss. 717, 54 So. 158; Bolden v. State, 98 Miss. 723, 54 So. 241; Floyd v. State, 138 Miss. 697, 103 So. 368; Barron v. State, 111 Miss. 231, 71 So. 374; Gross v. State, 191 Miss. 383, 2 So.2d 818.

Appellant contends that his request for a peremptory instruction at the close of the trial, which instruction was refused by the court, should have been granted, and the refusal of the court to do so was error, because the State's evidence is not sufficient, even in its most favorable light and if believed in its entirety, to sustain a verdict of guilty of the crime of assault with intent to rape, there having been no evidence whatsoever introduced to show that the accused had the requisite criminal intent to commit the crime of assault with intent to rape. The only possible evidence showing any intent whatsoever is the purported confession of the accused, which was improperly admitted as evidence, and which was extorted from the accused by threats, force, duress, fear and physical violence. The corpus delicti must be shown by evidence aliunde the confession of the accused. In this case, there was no evidence of intent aliunde the purported confession. But even with the admission of the confession, appellant was still entitled to a peremptory instruction, because the acts complained of still do not support the conviction.

Harvey v. State (Miss.), 26 So. 931; Tynes v. State (Miss.), 29 So. 91; Green v. State, 67 Miss. 356, 7 So. 326; Spurlock v. State, 158 Miss. 280, 130 So. 155; Pew v. State, 172 Miss. 885, 161 So. 678; Monroe v. State, 71 Miss. 196, 13 So. 884; Billingsly v. Illinois Cent. R. Co., 100 Miss. 612, 56 So. 790; Sorrells v. State, 130 Miss. 300, 94 So. 209; Jones v. State, 172 Miss. 597, 161 So. 143; Hampton v. State, 99 Miss. 176, 54 So. 722; Hosey v. State, 136 Miss. 5, 100 So. 577; Page v. State, 160 Miss. 300, 133 So. 216; Bullock v. State, 195 Miss. 340, 15 So.2d 285; Taylor v. State (Miss.), 37 So. 498; Jones v. State, 90 Ala. 628, 8 So. 383; Code of 1942, Sec. 2361; 22 C.J.S. 881, Sec. 566; 44 Am. Jur. 915, Sec. 21, 22, 24.

Miss Nadine Wade, a witness for the State, on direct examination revealed that she lived two or three houses from that occupied by the Dubois family on Bailey Avenue, Jackson, Mississippi. Miss Wade testified that she woke up on the night in question and as she sat on the side of her bed "somebody darted around the house." She further testified that she could not see what the person looked like but she knew he had on dark trousers. The tesimony of Miss Nadine Wade was clearly incompetent and immaterial and was extremely prejudicial to the rights of the accused.

Harper v. State, 83 Miss. 402, 35 So. 572.

The confession of the accused was obtained by means of fear, threats, physical violence, and duress, thereby violating the constitutional guaranties of the 5th and 14th Amendments to the Constitution of the United States and Sections 14 and 26 of the Mississippi Constitution of 1890.

Whip v. State, 143 Miss. 757, 109 So. 697; Fisher v. State, 145 Miss. 116, 110 So. 361; Bartee v. State, 180 Miss. 141, 177 So. 355; White v. State, 129 Miss. 182, 91 So. 903, 24 A.L.R. 699; Simon v. State, 37 Miss. 288; Johnson v. State, 107 Miss. 196, 65 So. 218, 51 L.R.A. (N.S.) 1183 Mathews v. State, 102 Miss. 549, 59 So. 842; Johnson v. State, 89 Miss. 773, 42 So. 606; Durham v. State, 47 So. 545; Reason v. State, 94 Miss. 290, 48 So. 820; Fisher v. State, 145 Miss. 116, 110 So. 361; Brown v. State, 173 Miss. 542, 563, 158 So. 339, 161 So. 465, 297 U.S. 278, 56 S.Ct. 461, 80 L.Ed. 682; Street v. State, 200 Miss. 226, 26 So.2d 678; Ashcraft v. Tennessee, 322 U.S. 143, 64 S.Ct. 921, 88 L.Ed. 1192; State v. Wood, 122 La. 1014, 48 So. 438; 22 C.J.S. 1425, 1426, Sec. 817(b); 20 Am. Jur. 441, 442, Sec. 1514.

The court erred in permitting the State to reopen its case and in admitting the testimony of Bessie Glade Dubois, and Mrs. Dee (Clara) Dubois, as to the previous chaste character of Bessie Glade Dubois, after the State and the accused had both rested, after the State had put on rebuttal testimony, both sides having thereupon again rested, and after the instructions had been prepared, submitted to the court, and some of the instructions had been approved by the court.

Reddick v. State, 72 Miss. 1008, 16 So. 490; Roney v. State, 167 Miss. 827, 150 So. 774.

The verdict of the jury was obviously contrary to the instructions of the court that properly announced the law governing the issues involved in this case and such verdict of the jury shows that the jury clearly disregarded such proper instructions in arriving at its verdict. Further, the verdict of the jury is contrary to the overwhelming weight of the evidence and is not supported by any competent, believable, credible evidence.

The court erred in passing judgment and in sentencing the defendant as having been guilty of the crime charged, because the proof offered could sustain only a misdemeanor.

John v. State, 191 Miss. 152, 2 So.2d 800; Grillis v. State, 196 Miss. 576, 17 So.2d 525; Clark v. State, 198 Miss. 88, 21 So.2d 296; Code of 1942, Secs. 2011, 2017, 2361.

Greek L. Rice, Attorney General, by R.O. Arrington, Assistant Attorney General, for appellee.

Where there has been a confession by the accused, much slighter proof is required to establish the corpus delicti than would be necessary where the State must make out the entire case, unaided by a confession. Any corroborative proof in such a case will be held sufficient which satisfies the mind that it is a real and not an imaginary crime which the accused has confessed, and the fact that he was the guilty party may be found by the jury, on proof much slighter than that ordinarily essential.

Gross v. State, 191 Miss. 383, 2 So.2d 818.

In order for the corpus delicti to be established by evidence aliunde the confessions, it is not necessary that the proof aliunde should show the crime or corpus delicti beyond a reasonable doubt, but it is sufficient to show it by a preponderance of the evidence or by evidence amounting to a probability, and then the confessions will be received, and, if the confessions coupled with the proof of the corpus delicti aliunde show the corpus delicti beyond a reasonable doubt, it is sufficient.

Gross v. State, supra.

The evidence was sufficient to support the crime of assault with intent to rape.

Hoye v. State, 171 Miss. 371, 157 So. 367; Green v. State, 67 Miss. 356, 7 So. 326; Spurlock v. State, 158 Miss. 280, 130 So. 155; Thompson v. State, 124 Miss. 463, 86 So. 871.

The testimony of Miss. Wade, who testified on the part of the State, that she saw some unknown person, about the time in question or immediately prior to the time the assault was made, around her home was harmless. She did not attempt to identify the appellant as the party she saw. There is nothing prejudicial about the testimony; no contention that she saw the defendant in this case. The appellant's defense was an alibi, that he was not there. So in any event it could not have been prejudicial to him in this case.

The record in this case shows that the court conducted a preliminary inquiry as to the admissibility of the confession in the absence of the jury. The court properly held that the confession was admissible.

Street v. State, 200 Miss. 226, 26 So.2d 678.

It is not reversible error for the court to allow testimony in rebuttal which should have been introduced as substantive evidence in chief, unless it is shown that no opportunity is afforded the defendant to reply by surrebuttal testimony. The admission of such testimony rests largely within the sound discretion of the trial court.

Clark v. State, 181 Miss. 455, 180 So. 602.

An assignment that the verdict was against the weight of the evidence cannot be entertained by the Supreme Court in the absence of a motion for a new trial.

Justice et al. v. State, 170 Miss. 96, 154 So. 265. Jackson Young and Will S. Wells, all of Jackson, for appellant, on suggestion of error.

The appellant contends that prior to the time of the alleged confession, violence was used and threats were made which continued to operate on the appellant and which caused him to make an involuntary confession of the crime.

Banks v. State, 93 Miss. 700, 47 So. 437; Jones v. State, 133 Miss. 684, 98 So. 150; Brittenum et al. v. State, 175 Miss. 453, 167 So. 619; Street v. State, 200 Miss. 226, 26 So.2d 678, 679; 22 C.J.S. 1436, Sec. 817(5).

At the time the prosecution first offered evidence of the confession, the appellant made a general objection thereto and the jury retired. In the absence of the jury the prosecution then called two witnesses, Officer McLeod and Captain Rogers, who were examined as to whether the confession had been voluntarily made. The appellant then took the stand for direct examination and, upon cross-examination, it was brought out for the first time that Albert Lee denied making parts of the confession. Immediately upon this having been brought out, the district attorney stated to the court, "it wouldn't be a confession if he doesn't admit he did it; Mr. Rogers' testimony would be admissible." At the conclusion of the appellant's examination, the district attorney again stated: "By Mr. McGowan: It is not a confession. It is something Mr. Rogers would testify he told him that he denies; it is not a question of saying under duress. By the Court: It is a complete denial of the defendant he made the statement or admission to Mr. Rogers or anyone else. In view of what he said, I want to go further into the question. Call the jailer. By Mr. Miller: This confession has got him saying he struck the little girl. By the Court: That is not the point at this stage of the game." These were the last words spoken in regard to the question of the admissibility of the testimony by either of the counsel or the court, prior to the rulings of the court on the question of whether the testimony would be admissible. After the jailer had been called and examined, the court stated, "this testimony is admissible, gentlemen. The objection is overruled." It is thus apparent that, at the time the court was called upon to rule on the admissibility of the testimony, there were two grounds upon which the court could allow the testimony, the first being as a confession and thus evidence of guilt, in which case the confession would have to be shown to have been voluntarily made, the second being to lay a predicate for the impeachment of the appellant's testimony, in which case the statements would not have to be voluntary statements. It being thus apparent that it is not a certainty that the lower court found the confession was voluntarily made, but that such a finding was nothing more than a probability, the appellant respectfully contends that, in this state of uncertainty, this Court should not be bound by a probable finding of the lower court, but that this Court should examine the evidence introduced on the question of whether the confession was voluntarily made, without being restricted or constrained by any possible finding of the lower court, which is a mere probability and not a certainty. The appellant respectfully submits that, under the law and facts, this Court would not be justified in ruling that the testimony introduced by the State has precluded every reasonable doubt that the confession was voluntarily made.

Hicks v. State, 99 Ala. 169, 13 So. 375; Commonwealth v. Tolliver et al., 119 Mass. 312; State v. Fisher et al., 108 Mont. 68, 88 P.2d 53; Bryan v. State, 45 Fla. 8, 34 So. 243, 244.

The appellant has been denied of his liberty without due process of law, in violation of the Fourteenth Amendment of the Constitution of the United States.

Malinski v. State of New York, 324 U.S. 401, 65 S.Ct. 781, 89 L.Ed. 1029, 1032; Ashcraft v. State of Tennessee, 322 U.S. 143, 88 L.Ed. 1192, 1200; Ward v. State of Texas, 316 U.S. 547, 62 S.Ct. 1139, 86 L.Ed. 1663; Lisenba v. State of California, 314 U.S. 219, 62 S.Ct. 280, 86 L.Ed. 166, 180; Chambers v. State of Florida, 309 U.S. 227, 60 S.Ct. 472, 84 L.Ed. 716, 724.

The Court is in error in sustaining the action of the lower court in allowing the State to reopen its case to establish previous chaste character after the State had twice rested, the instructions had been submitted to the court, and after the court has passed upon some of these instructions.

Roney v. State, 167 Miss. 827, 150 So. 774, 775; Clark v. State, 181 Miss. 455, 180 So. 602; Brown v. State, 173 Miss. 542, 158 So. 339; Reddick v. State, 72 Miss. 1008, 16 So. 490; 23 C.J.S. 459, Sec. 1051.

Alexander, J., delivered the opinion of the court.

The appellant was convicted of an assault with intent to ravish a female of previously chaste character, under Code 1942, Section 2361. The assigned errors which we shall discuss are: (1) the failure of the State to establish the corpus delicti; (2) the admission of a confession by accused; (3) admission of certain testimony; (4) the granting of the State's motion to reopen its case after both sides had rested; and (5) sentence under the wrong statute.

The following facts were testified to by witnesses for the State. The victim was awakened by severe blows upon her head evidently from an empty soft drink bottle. The screen window had been forced open and she saw a man at the window in the act of escaping. Neighbors saw a man leaving the premises at the time of the assault and the officers soon thereafter arrested appellant nearby and found him panting and out of breath as if he had been running and with his shoes and the lower part of his trousers wet.

Appellant was placed in jail and on the afternoon of the following day he was interrogated by two officers to whom he confessed that it was he who had broken in the room and struck the victim three times while she was asleep in bed; that he had watched and waited outside while she prepared for bed, and that his intent was to ravish. There is no question whether any coercion was used by these officers, but, on the contrary, defendant testified they had "been nice to him" and had explained that his statement would be used against him and that such statement would be wholly voluntary. The details of the confession had never been suggested or known by any one other than the defendant. When he was requested to sign the statement after its reduction to writing, he refused to do so stating that during the morning two officers in the room and presence of the jailer "had treated him kind of bad." The interview was thereupon closed and his signature was not insisted upon.

The defendant testified that during the morning referred to, two plain clothes men had brought him to the office of the jailer and demanded that he confess the crime, and struck him twice with the warning that if he went "down stairs and said he didn't do it, it will be mighty bad for you." The said detectives were not introduced and the jailer denied that this incident occurred. The trial judge thereupon admitted the confession into the record.

The conduct of the two detectives, if true, would of course be indefensible and would warrant and receive our condemnation. Yet the issue of fact as well as credibility was for the trial judge upon such preliminary qualification, and we are not willing to disturb his conclusion. Street v. State, 200 Miss. 226, 26 So.2d 678.

The confession being admitted, we are of the opinion that it was available to suport the testimony adduced aliunde in establishing the corpus delicti. There was no room for doubt that the room had been burglariously entered and the assault and battery committed. The purpose of such entry and assault is necessarily provable circumstantially. Here the existence of a criminal intent is clear and a specific intent to ravish is, at least, consistent with the proven facts and reasonably inferable. A burglarious breaking is evidence of some unlawful purpose, Thompson v. State, 124 Miss. 463, 86 So. 871; Moseley v. State, 92 Miss. 250, 45 So. 833. In the former an inference of intent to ravish was held justified, while in the latter the finding of a motive of theft rather than rape was approved by the Court, yet such issue involved was one of guilt and not of the corpus delicti. The direct proof was sufficient to admit the confession in aid of proof as to the body of the crime. Keeton v. State, 175 Miss. 631, 647, 167 So. 68; Gross v. State, 191 Miss. 383, 2 So.2d 818; Phillips v. State, 196 Miss. 194, 16 So.2d 630.

There was no error in admitting the testimony of Miss Nadine Wade for the State. Her testimony was that she saw, about the time of the assault, some one dressed in dark trousers "dart around the corner" of her house, which was two doors away from that of the victim. Such testimony was either relevant as incriminating or was entirely harmless. Hence its admission was not error.

After both sides had rested the State moved to reopen to introduce testimony it had overlooked, in the direct examination of the victim and her mother, to establish previous chastity. The trial court did not abuse its discretion in allowing this to be done. Ample opportunity for cross-examination was allowed. This proof was an element of the accusation of which defendant had been duly informed. Roney v. State, 167 Miss. 827, 150 So. 774; Brown v. State, 173 Miss. 542, 158 So. 339, 161 So. 465, rev. on other grounds, 297 U.S. 278, 56 S.Ct. 461, 80 L.Ed. 682; Clark v. State, 181 Miss. 455, 180 So. 602. Reddick v. State, 72 Miss. 1008, 16 So. 490, is distinguishable upon its facts, and contained other egregious errors requiring reversal.

The mere probability that appellant could have been prosecuted and sentenced under Code 1942, Section 2011, for assault and battery with a deadly weapon with intent to ravish or under Section 2017 for an attempt, is met by the fact that he was indicted, tried, convicted and sentenced under Section 2361.

Affirmed.

Alexander, J., delivered the opinion of the court.

ON SUGGESTION OF ERROR.

McGehee, J., delivered the opinion of the court on suggestion of error.

We are urged to reconsider the question of whether or not the confession of the accused, which was testified to by the officers, was made freely and voluntarily. The proof on behalf of the State on that issue is that a statement was made by the accused in the presence of officers McLeod and Rogers, which was reduced to writing, but which he refused to sign, stating that "two men had treated him kind of bad during the forenoon" of that day; that thereupon officer Rogers stated that he "would not take a statement under those conditions from anybody," and the accused was then returned to his cell. The written confession, not having been signed, the details of the same were testified to by the officers at the trial.

The accused testified that these two men who had interviewed him during the forenoon were plain clothes men, and that they struck him at least twice when he refused to admit that he had committed the crime charged against him. He further testified that after they had thus treated him, they said: "If you go downstairs and say you did not do it, it will be mighty bad for you."

There was no testimony to the effect that he was mistreated by officers McLeod and Rogers on the occasion when they took his statement down in writing. The trial judge was zealous in his effort to try to ascertain the truth as to whether or not this confession was made freely and voluntarily, and he caused the jailer to be called as a witness, whom the accused said was present at the time he was mistreated, and the jailer testified in substance that while he had no distinct recollection of the occasion, or whether he was even present at the time the interview was had, he was positive that no one had struck the accused on the occasion complained of or at any other time in his presence, although he admitted that sometimes prisoners were assaulted but "not unmercifully." However, he was not asked as to whether one of the two men who were said to have mistreated the prisoner made the statement to him that "If you go downstairs and say you did not do it, it will be mighty bad for you." Therefore the statement of the accused in that behalf is wholly undisputed in this record.

However, the accused steadfastly testified, both upon the hearing before the trial judge in the absence of the jury and on the trial on the merits before the jury, that he did not in fact admit to officers McLeod and Rogers that he had committed the crime. That is to say, he denied having made to them a confession of the details about which they testified. Therefore, his contention here that the confession testified to by the officers was not made at all, and his contention that such confession was not freely and voluntarily made on account of the previous mistreatment accorded to him prior thereto, cannot both be true. As was said in the case of Upshur v. Commonwealth, 170 Va. 649, 197 S.E. 435, 437, "If the defendant made no confession, it is evident that neither fear nor favor moved him. If he did make the confession, it is equally clear that his testimony upon trial was false. The successive positions of the defendant are not only inconsistent with each other, but they are mutually contradictory. To sustain his subsequent contention, he asks us to disregard his evidence, and accept as true the evidence of the officers that a confession was made, but to refuse to accept their evidence that it was voluntarily made."

If the accused had not denied having made any confession at all, we would feel constrained to reverse the conviction herein because of the fact that his testimony as to the threat made to him during the forenoon by the plain clothes men is wholly undisputed, the jailer not having been asked about this threat, and having testified only that he was not struck by anyone in his presence after his arrest for this crime. But, we think that one accused of crime cannot be heard to say that he did not make a confession at all, and at the same time contend that an alleged confession was made under inducement of fear. We do not mean by this to say that one who claims to have been acting under fear when he makes statements which involve his guilt of crime cannot be heard to dispute that some of the statements embodied in an alleged confession were not actually made as disclosed by a written statement which he may or may not have signed, or as testified to by the officers as having been orally made, but we limit this holding to a case where an accused denies having made any statements in an alleged confession, and at the same time contends that he was acting under fear when he made them.

For the reasons hereinbefore stated, we are of the opinion that the suggestion of error should be, and the same hereby is, overruled.

Suggestion of error overruled.