Opinion
No. 34957.
May 10, 1943. Suggestion of Error Overruled June 14, 1943.
1. RAPE.
In rape prosecution, accused's guilt was for jury (Code 1930, sec. 1122).
2. CRIMINAL LAW.
The conflicts in evidence and credibility of witnesses were for jury.
3. RAPE.
The rule which prohibits the state in rape prosecution from showing any statement made by prosecutrix except mere complaint that she had been violated is an exception to "hearsay" rule and is allowed for purpose of permitting prosecutrix from being discredited by inferences which would stem from her silence (Code 1930, sec. 1122).
4. CRIMINAL LAW.
In rape prosecution, prosecutrix was properly permitted to identify photographs depicting scene of crime, where purpose of photographs was to establish venue and scene shown was testified to by others present when photographs were made (Code 1930, sec. 1122).
5. WITNESSES.
The cross-examination of accused not only as to whether he had been convicted of crime, but also as to nature of offense and extent of his sentence, constituted error under the record.
6. CRIMINAL LAW.
In rape prosecution, improper cross-examination regarding prior conviction was not prejudicial where inquiries elicited information which was to accused's credit and disabused jurors of any doubt whether offense was grand or petit larceny and shielded accused from any assumption that he had been punished by confinement in penitentiary (Code 1930, sec. 1122).
APPEAL from circuit court of Sunflower county, HON. S.F. DAVIS, Judge.
W.W. Pierce, of Jackson, and Johnson Allen, of Indianola, for appellant.
The testimony of the prosecutrix, Willie Jewell Gray, contains numerous and serious contradictions and facts inconsistent with the design on the part of the appellant to ravish her and is not corroborated as to the act of carnal knowledge and is therefore insufficient to convict appellant and the request for a directed verdict should have been granted.
Holifield v. State, 132 Miss. 446, 96 So. 306; Davis v. State, 132 Miss. 448, 96 So. 307; Monroe v. State, 71 Miss. 196, 13 So. 884; Rawls v. State, 105 Miss. 406, 62 So. 420.
The pictures introduced to the testimony of the prosecutrix were not admissible and constituted reversible error.
Frost v. State, 100 Miss. 796, 57 So. 221; Lewis v. State, 183 Miss. 192, 184 So. 53; Cumberland v. State, 110 Miss. 521, 70 So. 695; Huddleston v. State, 134 Miss. 382, 98 So. 839.
The state failed to establish venue in Sunflower County by competent evidence. We submit that venue must be proved by the same competent evidence as any other material matter in the case. The state undertook to establish venue by J.E. Godfrey, a deputy sheriff of Sunflower County, and in so doing identified the place of the commission of the alleged crime as being in Sunflower County from some pictures taken by the witness H.L. Farley. This evidence was introduced over the objections of the appellant. These pictures we submit were inadmissible in evidence.
There is no evidence in the record that either Mr. Farley or Mr. Godfrey knew of their own personal knowledge that the place where the pictures were taken was the place of the alleged rape nor was there any other evidence identifying the place as such.
If the place was pointed out by the prosecutrix, which fact is not shown in the record, and the pictures taken of the place so pointed out, it was in effect a statement by the prosecutrix to them of the location and details of the surroundings of the place of the alleged rape. This we submit was purely hearsay evidence.
Frost v. State, supra; Lewis v. State, supra.
The record fails to show that the place shown by the pictures and from which venue was sought to be established had been pointed out by the prosecutrix or any other witness of their own personal knowledge to have been the place where the alleged rape occurred.
Cumberland v. State, supra; Huddleston v. State, supra; Lewis v. State, supra.
The effort on the part of the state to establish venue through these pictures was an attempt to do indirectly that which could not be done directly and thereby constituted reversible error in the trial of this case. In a criminal case venue is jurisdictional and must be proved by competent evidence and may be raised for the first time in the Supreme Court.
Cagle v. State, 106 Miss. 370, 63 So. 672; Norwood v. State, 129 Miss. 813, 93 So. 354; Kyle v. Calhoun City, 123 Miss. 542, 86 So. 340; Norris v. State, 143 Miss. 365, 108 So. 809.
Greek L. Rice, Attorney-General by Russell Wright, Assistant Attorney-General, for appellee.
The venue was properly laid in Sunflower County. The prosecutrix was present when the pictures were taken at the spot where she claimed the offense was committed. She identified this spot from the pictures, and the same spot was identified as being in Sunflower County, Mississippi. These pictures were not objectionable because of hearsay as the ultimate fact proved by such facts was not anything more than that the place where the offense was supposed to have occurred, as testified to definitely by the prosecutrix, was located in Sunflower County. This would remove this testimony from the operation of any possible hearsay rule.
We submit that there was ample evidence for the jury to have found the appellant guilty.
McArthur v. State, 105 Miss. 398, 62 So. 417; McLaurin v. State, 129 Miss. 362, 92 So. 289; Fairley v. State, 152 Miss. 656, 120 So. 747; Bardwell v. State, 155 Miss. 711, 125 So. 85.
Argued orally by P.W. Allen and W.W. Pierce, for appellant, and by Russell Wright, for appellee.
Appellant was convicted under Code 1930, Section 1122, for rape committed upon a young girl fifteen years of age. The direct evidence of the prosecutrix was sufficient to make a case for the jury. It was moreover corroborated in several particulars by her mother as to the condition of her clothing and by her physician as to the condition of her person. The testimony for the appellant, except for his denial of the assault itself, was not inconsistent with that for the state, and in many respects confirms that of the prosecutrix as to their prior meeting and their presence in the automobile in which she alleges the assault was committed. The responsibility for resolving various conflicts and for adjudging credibility was properly left with the jury.
During the examination of the prosecutrix, certain photographs were exhibited to her which she identified as depicting the scene of the crime. It is assigned as error that by the use of these pictures the State violated the well-established rule that details of this crime may not be shown by the complaint or report of the prosecutrix. Counsel has misapplied this rule which prohibits the state from showing any statement made by her except the mere complaint that she had been violated. The rule is an admitted exception to the hearsay rule and is allowed for the purpose of permitting the victim of such outrage from being discredited by interferences which would stem from her silence. Ashford v. State, 81 Miss. 414, 33 So. 174.
The disclosed purpose of this evidence and the basis for its admission was to establish venue. The scene shown by the photographs was testified to by the photographer and by a deputy sheriff and other witnesses who were present. The prosecutrix was also present when the pictures were made. The locality was identified as the scene of the crime, not by quoted statements of the victim but by her direct testimony. There was nothing improper in thus adding her testimony to that of others to attain the total of identification. Moore v. State, 30 Ala. App. 552, 9 So.2d 146, 147. The girl's testimony furnishes an element that was not present in Lewis v. State, 183 Miss. 192, 206, 184 So. 53, and is thus distinguished.
Appellant also assigns as error that, upon his cross-examination, he was asked not only whether he had been convicted of crime but also as to the nature of the offense and the extent of his sentence. The question was "You were convicted at the August 1935 term of the Circuit Court at Belzoni for larceny of cotton?" to which appellant, after objection thereto was overruled, replied, "Yes, sir." Later he was asked: "You served a term of sixty days and paid a fine of $100?" "No, sir." "What did you do?" "I served forty-five days and paid a fine of $100." "You got some time off for good behavior?" "Yes, sir." The questions went beyond allowable limits which restrict the inquiry to the mere fact of conviction and the identity of the offense. Brooks v. State, 192 Miss. 121, 4 So.2d 886. Yet the effect of this examination is controlled by the principle announced in Roney v. State, 167 Miss. 532, 142 So. 475, in which such error was held not prejudicial. Here, the inquiries elicited information which not only was to appellant's credit but operated to disabuse the jurors of any doubt whether the offense was grand or petit larceny and shielded him from any assumption that he had been punished by confinement in the penitentiary. Other errors assigned are found to be without merit.
Affirmed.