Opinion
No. 36538.
May 10, 1948.
RAPE.
Evidence supported conviction of forcible rape as against defendant's contention that evidence showed at most attempted rape.
APPEAL from the Circuit Court of Warren County.
Harry K. Murray and John H. Culkin, both of Vicksburg, for appellant.
The prosecutrix testified that the defendant committed the crime of rape upon her by beating and forcing her into submission. The defendant testified that he had the intent to commit rape upon the prosecutrix, but that he was prevented from carrying his intent into the accomplished act by the strength of the prosecutrix in fighting him off. The defendant moved to exclude the evidence and direct the jury to find him not guilty of rape at the conclusion of the evidence for the State and renewed this motion after the conclusion of all of the evidence. The defendant's motions were denied by the court and he asked the court to instruct the jury that he was not guilty of the crime of rape; this was refused. The question of attempt was submitted to the jury by an instruction requested by the defendant. Motion for a new trial was filed by defendant and overruled by the court. We submit this cause as to whether the verdict of the jury finding the defendant guilty of rape was justified by the record, or that the verdict of the jury should have followed the statement and testimony of the defendant that he was guilty of an attempt and not the completed crime, and that the case should be reversed and submitted to another jury upon the evidence.
Greek L. Rice, Attorney General, by Geo. H. Ethridge, Assistant Attorney General, for appellee.
The appellant was indicted at the January term 1947 of the circuit court of Coahoma, County, on a charge of raping one Marie Hughes Edwards, a female, forcibly, wilfully, unlawfully, feloniously, and violently, without her consent against the peace and dignity of the State of Mississippi. The defendant was arraigned, pled not guilty, and the trial was entered upon in the circuit court of Coahoma County, but due to the fact that the husband of Mrs. Edwards attempted to kill the appellant a motion for a change of venue was entered and granted, the case being removed to Warren County where the trial took place. It is not necessary to go into the facts in detail as they are fully established, justifying the verdict of guilty with the death penalty, which was deserved.
Willis was convicted of the forcible rape of Mrs. Marie Hughes Edwards and sentenced to death. He appeals. The appeal involves only one question. That question is whether the jury was justified in finding Willis guilty of rape or merely of attempted rape. This is the evidence on that question: Willis testified that he robbed Mrs. Edwards by the use of a shot gun and other force; that he then dragged her to a near-by "borrow" pit, got on top of her and was in position to rape her but was prevented from actually accomplishing his purpose by resistance of Mrs. Edwards. He was the only witness in his behalf. On the part of the State, one witness testified that Willis told him the foregoing facts except that Willis said he succeeded in a partial, but not full, penetration of the vagina. The evidence of Mrs. Edwards was that there was a full and complete accomplishment of the act. Dr. Brevard, who examined Mrs. Edwards within twenty to thirty minutes after the event, testified that there had been a full and completed act of copulation. He detailed the physical condition of Mrs. Edwards, as well as other facts not necessary for us to set out, proving, without question, there had been a complete act of sexual intercourse. It is thus seen there was ample evidence to sustain the finding of the jury.
Affirmed and Friday, July 2, 1948, set for the date of execution.