Opinion
No. 40440.
March 18, 1957.
1. Infants — evidence — sustained conviction of fondling a female child under age of 13 years.
Evidence sustained conviction for fondling a female child under the age of 13 years with sexual or licentious intent. Sec. 2052, Code 1942.
2. Criminal law — trial — contention that State was permitted to attack credibility of one of its witnesses was without merit.
Fact that two witnesses testifying for State did not agree upon what they saw and heard did not constitute reversible error on ground that State was permitted to attack credibility of one of its own witnesses, especially where no objection had been made to either witness on such ground.
Headnotes as approved by Roberds. P.J.
APPEAL from the Circuit Court of Alcorn County; RAYMOND T. JARVIS, Judge.
Ely B. Mitchell, Corinth, for appellant.
I. The burden of proof was on the State. Walton v. State, 219 Miss. 72, 68 So.2d 87.
II. Under the statute covered by the indictment, corroboration must be not merely of incidental details but of the commission of the prohibited act. Even though circumstances and admissions may be sufficient to this end, it remains true that corroboration must be of the secret part of gist of the crime. Gillis v. State, 152 Miss. 551, 120 So. 455; Hollins v. State, 128 Miss. 119.
III. Mere opportunity creating a possibility is not enough of itself. Gillis v. State, supra; Grogan v. State, 151 Miss. 652, 118 So. 627; Yancey v. State, 202 Miss. 662, 32 So.2d 151.
IV. Under the common law, a crime consists of two elements; namely, an evil intention and an unlawful action. A crime is not committed if the mind of the person doing the unlawful act is innocent; a guilty intent is essential. The intent must exist at the time of the unlawful action, for no subsequent felonious intention will render the previous act felonious. 14 Am. Jur., Sec. 23 p. 782.
V. To constitute a crime the act must, except in the case of certain statutory crimes, be accompanied by a criminal intent or by such negligence or indifference to duty or to consequences as is regarded by the law as equivalent to a criminal intent. 16 C.J., Sec. 41 p. 74.
VI. Courts must look to the law itself for the legislative intent, and it is not within the province of the Court to write the law.
VII. It has long been a well-settled general rule that penal statutes are subject to strict construction. More accurately, it may be said that such laws are to be interpreted strictly against the State and liberally in favor of the accused. Abbott v. State, 106 Miss. 340, 63 So. 667; Johnson v. State, 63 Miss. 228; Nelson v. City of Natchez, 197 Miss. 26, 19 So.2d 747; Ricks v. State, 146 Miss. 659, 111 So. 752; State v. Traylor, 100 Miss. 544, 56 So. 521; Stewart v. State, 95 Miss. 627, 49 So. 615; Waldrup v. State, 154 Miss. 646, 122 So. 771; Walton v. State, supra; West v. State, 70 Miss. 598, 12 So. 903; 50 Am. Jur., Sec. 407 p. 430.
VIII. Statutes creating crimes are to be strictly construed in favor of the accused. They may not be held to extend to cases not covered by the words used. Fasulo v. United States, 272 U.S. 620; 71 L.Ed. 442; United States v. Resnick, 229 U.S. 207, 81 L.Ed. 127.
IX. Corroboration of testimony. Jones v. State, 155 Miss. 335, 124 So. 368.
X. The State cannot impeach its own witness. Dunk v. State, 84 Miss. 452, 36 So. 609; Madden v. State, 65 Miss. 178, 3 So. 328; Williams v. State, 73 Miss. 820, 19 So. 826; Omaha G. Smelting and Refining Co. v. Tabor, 131 Colo. 41, 21 P. 925, 5 L.R.A. 236; People v. DeMartini, 213 N.Y. 203, 107 N.E. 501, L.R.A. 1915F 601.
J.R. Griffin, Asst. Atty. Gen., Jackson, for appellee.
I. The State met the burden of proof and the verdict of the jury is supported by both the law and the evidence. Allen v. State, 175 Miss. 745, 166 So. 922; Boyd v. State, 189 Miss. 609, 198 So. 561; Buchanan v. State, 225 Miss. 399, 83 So.2d 627; Gerrard v. State, 34 So.2d 195; Reeves v. State, 159 Miss. 498, 132 So. 331; Rogers v. State, 204 Miss. 891, 36 So.2d 155; St. Amant v. State, 227 Miss. 485, 86 So.2d 455; Upton v. State, 192 Miss. 334, 6 So.2d 129; Barnes v. State, 164 Miss. 126, 143 So. 475; Sec. 2052, Code 1942; 75 C.J.S. 564.
II. The State did not impeach its own witness. Manning v. State, 188 Miss. 393, 195 So. 319.
Maddox was convicted of fondling a female child under thirteen years of age and sentenced to serve a term of one year in the state penitentiary under Section 2052, Mississippi Code of 1942. (Hn 1) He urges on this appeal that the proof is insufficient to support the verdict of the jury that the acts performed by him, as testified to by the State's witnesses, and evidently accepted by the jury, were prompted by a desire to gratify his lust or sexual desires, as is required by said section. The contention has given us much concern. It has been ably presented by counsel for Maddox. However, after a thorough examination and consideration of all of the testimony and circumstances surrounding the case we have concluded the evidence is sufficient to support the verdict. It would serve no useful purpose to detail and make a record of the acts to which the witnesses for the State testified. Amant v. State, (Miss.) 86 So.2d 455. It is pertinent to observe that questions involved in cases of this character are peculiarly problems for local jurors. That is especially true in this case, where the accused and all of the witnesses, as well as the jurors, resided in the same county where the trial was being had. The jurors were selected from the body of the county. Very likely some of them, at least, were friends and acquaintances of Maddox and of the witnesses. It is not an easy matter to convict a fellow resident, sixty-one years of age, of the crime of fondling a child ten years of age with sexual or licentious intent. The jurors personally observed the witnesses while they were testifying, including Maddox himself. The jurors were in much better position to pass upon the credibility of the witnesses and the accuracy of their testimony, and draw the correct meaning from the evidence, than are the members of this Court. We think the guilt or innocence of Maddox was a question for the jury.
(Hn 2) It is contended that the State was permitted to attack the credibility of one of its own witnesses, which action constituted reversible error. What happened was this: Two witnesses, testifying for the State, did not agree upon what they saw and heard — in other words, they were not in accord as to details. Their use as witnesses, under such circumstances, did not constitute an attack on the credibility of the witnesses. Seldom do witnesses agree upon every detail. Indeed, their failure to do so is often strong evidence each is trying to accurately portray the situation as he saw it, and that is to the credit, rather than the discredit, of the witnesses. Manning v. State, 188 Miss. 393, 195 So. 319. In addition, no objection was made to the testimony of either witness on the stated ground. Maddox had a fair trial.
Affirmed.
Kyle, Arrington, Ethridge and Gillespie, JJ., concur.