Opinion
No. 34263.
March 24, 1941.
1. CRIMINAL LAW.
Testimony of medical expert that in his opinion prosecutrix did not voluntarily consent to act of intercourse was inadmissible.
2. CRIMINAL LAW.
Error in permitting medical expert to testify that in his opinion prosecutrix did not voluntarily consent to act of intercourse was harmless where verdict of jury was manifestly correct.
APPEAL from the circuit court of Pike county, HON. J.F. GUYNES, Judge.
M.S. McNeil, of Hazlehurst, and Reeves Leggett, of McComb, for appellant.
A physician cannot as an expert testify that in his opinion the condition of the sexual organs of the female was produced by rape, or that no girl would have voluntarily submitted to the suffering necessary to bring about the result shown by his examination.
52 C.J. 1086, sec. 117; Simmons v. State, 105 Miss. 48; Underhill on Criminal Evidence (3 Ed.), p. 848, sec. 616; Underhill on Criminal Evidence (4 Ed.), sec. 670; Foster v. State, 70 Miss. 762; State v. Hull, 45 W. Va. 767; Henry Woodin, plaintiff in error, v. The People, 1 Parker's Criminal Reports, 464; People v. Schultz, 260 Ill. 40. W.D. Conn, Jr., Assistant Attorney-General, for appellee.
We appreciate the fact that this court has heretofore said, in effect, that this character of testimony is not permissible. We think that rule should apply to the ordinary run of cases, but we do not so concede in a case such as we have here where there was an unusual physical condition, one that the average layman would know nothing about. We think this is a case where the jury should have been allowed to have the benefit of this expert medical testimony. Under the peculiar situation reflected by this record, we submit that this testimony was proper and that the court committed no error in allowing it to be presented to the jury.
It was error to permit Dr. Hewitt to testify as a medical expert that in his opinion the prosecutrix did not voluntarily consent to the act of intercourse, but the verdict of the jury is so manifestly correct, we think the error was harmless. We find no reversible error in the record.
Affirmed.
SPECIALLY CONCURRING OPINION.
When the precise facts testified to by Dr. Hewitt as facts are kept well in mind, and his testimony is considered throughout in the precise connection in which adduced, I am of the opinion that there was no error in the admission of that part to which the majority in its opinion has taken exception, and that there was not only no reversible error in the record but no error at all.
McGehee, J., concurs in the foregoing statement.