Summary
In Richardson v. State, 196 Miss. 560, 17 So.2d 799, decided less than a year ago, attention was again called to the rule which has been followed in this state for more than a half century as regards the caution with which records involving the charge of rape must be scrutinized, and there, in a case stronger for the prosecution on its facts than the present case, the conviction was reversed, and with the further statement that except for the confession in that case, the appellant would be entitled to a peremptory charge.
Summary of this case from Wright v. StateOpinion
No. 35560.
May 8, 1944.
1. RAPE.
A conviction for rape may rest on the uncorroborated testimony of the person alleged to have been raped, but such testimony should be scrutinized with caution, and where there is much in the facts in evidence to discredit her testimony, another jury should be permitted to pass upon it.
2. CRIMINAL LAW.
Confessions are not conclusive and may be of little weight.
3. RAPE.
Evidence was insufficient to sustain conviction of rape.
SMITH, C.J., dissenting.
APPEAL from the circuit court of Jackson county, HON. L.C. CORBAN, Judge.
T.J. White, of Gulfport, for appellant.
The defendant, a negro, was employed at the same cafe as a cook where the chief prosecuting witness, a white girl, was employed as a waitress. The chief prosecuting witness, together with another girl, occupied one of the side rooms, separated by a hallway at the rear of the cafe. The room, as revealed by the testimony, was small and poorly ventilated, and the girls, during the summertime, kept their doors and windows open, but did have the screen latched on the occasion in question. Both the chief prosecuting witness and the defendant were, and had been, employed at this cafe for some time. The defendant of course passed in and out of the hallway opposite the room occupied by the chief prosecuting witness daily, as well as in the nighttime. The offense is alleged to have been committed between two and three o'clock in the morning. That the defendant did enter the room of Maxine Gibson there can be no doubt, but a careful examination of the testimony of Maxine Gibson and of the young lady who was asleep in a bed three feet from her in this small room is certainly sufficient to show that no actual forcible rape was committed in that room. The statute requires that the female exert every muscle in her body in an effort to prevent the consummation of the crime unless she is overcome by a drug or fear. In the case at bar no drug was used, and while there is testimony of the chief prosecuting witness to the effect that she was in great fear by reason of the defendant having a knife in his possession, it is clearly shown, from her testimony, that she was not in fear for in her direct testimony she stated that she wrestled and tussled with the defendant for more than an hour and never made the slightest outcry.
We submit that her testimony was insufficient under the law to show she offered the resistance required by statute. She stated that she woke up and some one was standing by her bed. That she started to raise up in bed, and the intruder caught her feet. It is to be recalled that another young lady was asleep in a bed within three feet of the bed occupied by the witness, Maxine Gibson. She stated that the intruder said, "Don't move," and that she started to get out of bed and he got on the bed and sat down on her feet. We submit that there was no resistance up to this point, and she would have given an alarm if she was in fact afraid. It is to be recalled that she did not know, according to her testimony, who was in her room, and up to this point no weapon of any kind or threats of death or of great bodily injury had been made. She then stated she started to scream. In the darkness of the night the defendant could not have known that she started to scream, and common sense teaches us all that no starting is necessary to utter a scream whenever a person is in fact in any danger or great fear. The defendant would not and could not have known that she started to scream unless and until she did in fact scream, which she never did. She states that he took a knife out of his pocket and put it to her throat, and told her if she screamed he would kill her. Then she was asked what happened and her reply was, "I started struggling and fought with him until I gave out," and stated that the struggle lasted about one hour. The court's attention is called to the fact that the chief prosecuting witness testified when she was asked, "Did you make an effort to persuade him not to rape you," she replied, "Yes, sir." "What did you do?" "I begged him to get out of the room and he would not do it, and I told him if he would get out of the room I would meet him outside. I was trying to get him out of the room so I could get somebody." On cross-examination the chief prosecuting witness did not know what size room it was and could not give any estimate of the size, but did contradict her roommate in that she stated the beds were eight feet apart, whereas her roommate, Miss Olney West, stated that she, Olney West, was a light sleeper and was within three feet of the bed where the alleged crime was committed, and did not hear any part of it, and was never awakened until after the alleged crime and the defendant had departed. The chief prosecuting witness was asked which hand he held the knife in, and she said his right hand. She was asked if he held the knife on her throat all during the scuffle and she said, "Yes, and that scuffle lasted an hour." She further stated that he had the knife in his hand and his hand on her shoulder holding the knife to her throat, and that she did not, out of a spirit of fear, submit to any relationship with him. We submit that the testimony shows that she was not in fear, and that the physical facts show that it was physically impossible to have consummated the crime, as testified to by her, if resistance had been made, her testimony showing that she weighed 133 pounds, and being about the same size (approximately) of the defendant. There is but one explanation, consent, when it is observed that the roommate, the girl in the room with her and within three feet of her bed, did not hear any of this one hour scuffle, did not hear any of the so-called conversation, in other words, they kept so absolutely quiet during the entire procedure that a light sleeping roommate three feet away knew absolutely nothing about it until sometime after the defendant's departure.
We submit it is unreasonable, it will not stand the test, showing conclusively that there was no fear, and that the resistance, if she resisted as she stated, was not sufficient under the law for the offense to amount to the crime of rape.
Greek L. Rice, Attorney-General, by Geo. H. Ethridge, Assistant Attorney-General, for appellee.
There is no contradicting proof of the crime and circumstances under which it was committed. The defendant was identified by positive testimony, and, furthermore, appellant confessed after he was arrested. There is nothing in the record from which the court can find that any right of the appellant was prejudiced. He did not testify in his own behalf, and there is no other testimony in the record that would tend to show that he was not the guilty person.
Appellant, a negro man, was convicted and sentenced to death upon a charge of rape. Appellant was the cook in a small restaurant in the crowded city of Pascagoula, and the alleged victim is a white woman who was a waitress in the restaurant. She was about twenty years old, had been married, and the parties had worked together at the restaurant for some months. The crucial issue in the case, that which makes the difference between crime and no crime, is whether there was a rape by force or the actual equivalent thereof or whether there was consent, positive or passive.
The entire record of the testimony has been read by, or in the hearing of, every member of the court. Fifty years ago in Monroe v. State, 71 Miss. 196, 13 So. 884, the rule, and the philosophy thereof, for the guidance of bench and bar in such cases was laid down, and that rule has never been departed from. It was reaffirmed in the recent case, Upton v. State, 192 Miss. 339, 6 So.2d 129. In these cases it was said that it is true that a conviction for rape may rest on the uncorroborated testimony of the person alleged to have been raped, but it should always be scrutinized with caution; and where there is much in the facts and circumstances in evidence to discredit her testimony, another jury should be permitted to pass thereon.
A critical and cautious scrutiny of the record of the testimony discloses that in not less than four material, and in fact decisive, particulars the testimony of the prosecutrix is so highly improbable as to be scarcely believable, except, of course, to one who would simply prefer to believe it, and that when the four are considered together there arises such a doubt of the truth of what she has said on the stated crucial issue as to render the evidence hardly equivalent to a preponderance much less that which must carry conviction to an impartial and unbiased mind beyond all reasonable doubt. A majority of the court are of the opinion, in this respect, that without the so-called confession of appellant he would be entitled to a peremptory charge.
Nor is the confession sufficient in its terms to support a conviction, even if it were of a conclusive effect. But confessions are not conclusive and may be of little weight, Keithler v. State, 10 Smedes M. 192, 18 Miss. 192, or of great weight according as the particular circumstances may really warrant, 22 C.J.S., Criminal Law, sec. 843, pp. 1479, 1480. We have considered the so-called confession along with all the other evidence and upon the whole are of the opinion that the testimony is not sufficient beyond all reasonable doubt to sustain the verdict, and that the judgment should be reversed for another trial.
And inasmuch as there may be another trial, we think it better, as was done in the Upton case, supra, not to enter upon a discussion of the evidence in detail or to point out the particulars which have introduced the doubts, the grave doubt, which are inescapable under this record. We have pointed to the rule by which the evidence in cases such as this is to be weighed and that, with what we have otherwise said, is all that is necessary.
It is desired by some members of the court that mention be made of the fact that there hovers in the background of this record the broad issue of due process. The record does not disclose whether the attorney who appeared for the defendant was employed or whether appointed by the court; but, however that may have been, candor compels us to admit that he made only a token defense. We are entitled to take some knowledge of the members of the bar of the Supreme Court, of whom the attorney in this case is one, and we may assert with some confidence that he possesses both ability and energy. Why, then, did he make only a token defense, as to which see Powell v. State of Alabama, 287 U.S. 45, 53 S.Ct. 55, 77 L.Ed. 158, 84 A.L.R. 527? There must arise, therefore, more than a suspicion that there were such circumstances surrounding the trial, such a pervading atmosphere of prejudice engendered by a probable popular assumption of guilt with the resultant and revolting reaction of outrage, that it was deemed wiser by the attorney to make no more than the defense he did with a hope of a life sentence, and that later, time would come to the relief of the helpless defendant. Such a situation involves due process, the protection of which, above the interest of the accused in his own life or the prosecutrix in her own vindication, is the supreme duty and responsibility of the court, and both in the trial court and here.
What has been said in the proceeding paragraph has been with reluctance; but because the case is remanded for a new trial, we would interpose this caution against the record coming to us again in any such shape as the present record discloses.
Reversed and remanded.
Smith, C.J., dissents.