Opinion
No. 36440.
October 13, 1947.
1. RAPE.
In prosecution for violation of age of consent statute, testimony of physician concerning physical condition of prosecutrix indicating that condition was equally consistent with innocence and that from examination physician was unable to attribute condition to an act of defendant was insufficient corroboration to sustain conviction (Code 1942, sec. 2358).
2. RAPE.
In prosecution for violation of age of consent statute, testimony that at about time and place where alleged assault was committed witness saw an automobile, identified by other witnesses as being similar to that of defendant, and saw therein only a man whom he could not identify seated behind the steering wheel was insufficient corroboration to justify a conviction (Code 1942, sec. 2358).
3. RAPE.
In a prosecution under the age of consent statute corroboration must be, not merely of incidental details, but of the commission of the prohibited act, and mere opportunity creating a possibility is not of itself enough (Code 1942, sec. 2358).
4. RAPE.
In prosecution for violation of age of consent statute, circumstances and admissions may be sufficient corroboration, but such corroboration must go to secret part or gist of the crime (Code 1942, sec. 2358).
5. RAPE.
In prosecution for violation of age of consent statute, testimony of prosecutrix that on two prior occasions defendant had been guilty of related indecencies toward her did not satisfy requirement of corroboration (Code 1942, sec. 2358).
APPEAL from the circuit court of Panola county. HON. JNO. M. KUYKENDALL, J.
McClure Fant, of Sardis, for appellant.
The appellant was indicted at the September 1946 term of the circuit court of the First Judicial District of Panola County, Mississippi; the grand jury was discharged on the second day of that term; on the fourth day of the term the judge ordered that the grand jury reassemble for the sole purpose of indicting the appellant, which it very promptly did. After this indictment was returned, the grand jury again adjourned without returning any other indictments. When this was done, the petit juries had already been impanelled and it was but natural that the members of these juries understood the purpose for which the grand jury had reassembled, and it was but natural that this indictment should gain wide publicity, all of which was very adverse to the appellant. The judge should have sustained the motion for a continuance so that there might have been a "cooling off period" to the end that appellant might have obtained a fair and impartial trial in the judicial district of his residence. When the judge overruled appellant's motion for a continuance and ordered him to trial immediately, appellant had no alternative except to ask for a change of venue. Although a change of venue was granted, the case was transferred to the court of the Batesville district of the county only nine miles from Sardis and was tried by a jury of the same county, all within approximately two weeks from the date of the adjournment of the court at Sardis. It is easy to understand how the same inflamed feeling against the appellant followed him over so short a distance and over so short a period of time and was present during his trial in the Batesville district of the court. The court erred in overruling the appellant's motion for a continuance.
Coker v. State, 200 Miss. 535, 27 So.2d 898.
The court erred in overruling the demurrer to the indictment. The indictment does not specifically allege that the appellant is a male person, nor does it refer to him by the use of any masculine pronoun. In charging a statutory crime, the language of the statute or its equivalent must be used.
State v. Bradford, 126 Miss. 868, 89 So. 767; Code of 1942, Sec. 2359.
The lower court erred in permitting the State to introduce proof tending to show that, several days prior to the alleged crime, the appellant had had improper relations with the prosecutrix in violation of Section 2052 of the Code of 1942.
Willoughby v. State, 154 Miss. 653, 122 So. 757; Allen v. State, 175 Miss. 745, 166 So. 922; Coker v. State, supra; Code of 1942, Sec. 2052; 20 Am. Jur. 287.
The lower court erred in denying the appellant's request for a directed verdict of acquittal for the following reasons: (a) there was no corroboration of the prosecutrix' testimony that the appellant had had sexual intercourse with her; (b) there was no proof that the prosecutrix was an unmarried female person; and (c) there was no proof of the venue of the alleged crime.
State v. Bradford, supra; Hollins v. State, 128 Miss. 119, 90 So. 630; Nelson v. State (Miss.), 115 So. 899; Grogan v. State, 151 Miss. 652, 118 So. 627; Code of 1942, Secs. 2359, 2360.
The verdict was contrary to the overwhelming weight of the believable evidence, and a new trial should have been awarded.
Greek L. Rice, Attorney General, by R.O. Arrington, Assistant Attorney General, for appellee.
The overruling of a motion for a continuance is left largely to the discretion of the trial court. In the absence of an abuse thereof the overruling of a motion is not error. I submit that in this case the overruling of the motion was not error for the reason that application for change of venue was immediately made, which motion was sustained, and which necessarily carried the case over until the next regular term of the circuit court of the Second District of Panola County, which was the second Monday of October, 1946, the trial taking place two days later on October 16.
Appellant also contends that the court erred in reassembling the grand jury for the purpose of indicting the appellant. I submit that there is no evidence in the record to sustain his contentions save for his motion for change of venue, where it is charged that the grand jury was recalled. However, there is no evidence to even support this. Assuming this to be true, under Section 1786, Code of 1942, the court was authorized to re-assemble the grand jury during the term.
Bell v. State, 118 Miss. 140, 79 So. 85; Kyzar v. State, 125 Miss. 79, 87 So. 415.
Furthermore, all objections to an indictment for any defect dehors the face thereof, presenting an issue to be tried by the court, shall be taken by motion to quash the indictment, and not otherwise, within the time allowed for demurrer, and with the right to amend, as provided in the last preceding section. Therefore, the appellant is in no position to complain in the absence of the filing of a motion to quash the indictment.
Code of 1942, Sec. 2450.
The appellant contends that the indictment is insufficient for the reason that it fails to charge that the appellant was a male person. There is no merit in this assignment.
Brown v. State, 72 Miss. 997, 17 So. 278; Carlisle v. State, 73 Miss. 387, 19 So. 207.
The third assignment argued is as follows: "The lower Court erred in permitting the State to introduce proof tending to show that, several days prior to the alleged crime, the appellant had had improper relations with the prosecutrix in violation of Section 2052 of the Mississippi Code of 1942." It is a general rule that evidence of offenses unrelated to the crime with which the accused is charged will be excluded. To admit such evidence ordinarily would subject the accused to charges against which he is unprepared to offer a defense and thereby greatly prejudice him. But by the great weight of authority (there are a few cases to the contrary) an exception to the rule is recognized in the trial of sexual offenses, including incest, carnal knowledge, adultery, fornication, and rape. Under the exception evidence of previous acts or attempted acts of intercourse by the accused with the prosecutrix, at a time not too far remote, is relevant and admissible for corroborative purposes and to show a lustful disposition, notwithstanding that such acts are, in and of themselves, crimes.
Keel v. State, 133 Miss. 160, 97 So. 521; Kolb v. State, 129 Miss. 834, 93 So. 358; Ferrand v. State (La.), 27 So.2d 174; Wharton's Criminal Evidence (11 Ed.), Sec. 336; Underhill's Criminal Evidence (4 Ed.), Sec. 186; Wigmore on Evidence (3 Ed.), Sec. 398; Jones, Commentaries on Evidence (2 Ed.), Sec. 623; 22 C.J.S., Criminal Law, Sec. 691.
There was sufficient corroboration of the prosecutrix's testimony that the appellant had had sexual intercourse with her.
Jones v. State, 155 Miss. 335, 124 So. 368; Bardwell v. State, 155 Miss. 711, 125 So. 85; Smith v. State, 188 Miss. 339, 194 So. 922; Cavender v. State, 182 Miss. 557, 180 So. 789.
There was sufficient proof that the prosecutrix was an unmarried female person. All of the evidence shows that the prosecutrix was a child living with her parents and going to school, and the jury was instructed that before they could convict the appellant they would have to believe beyond a reasonable doubt that she was an unmarried person.
There was sufficient proof of the venue of the alleged crime. The court has held that venue may be proved by adding testimony of several witnesses.
Keel v. State, supra.
The court has also held that venue may be proved by circumstantial evidence.
Ussery v. State, 154 Miss. 704, 123 So. 854; Holloway v. State, 199 Miss. 356, 24 So.2d 857.
All the evidence in this case shows that the crime took place in close proximity to the county lines of Tunica, Quitman and Panola Counties. When the evidence leaves it doubtful in which of several counties the offense was committed, such doubt shall not avail to procure the acquittal of the defendant.
Hill v. State, 112 Miss. 375, 73 So. 66; Phillips v. State, 177 Miss. 370, 171 So. 24; Atkinson v. State, 132 Miss. 377, 96 So. 310; State v. Ashe, 182 Wn. 598, 48 P.2d 213; Code of 1942, Secs. 2419, 2429.
The verdict is amply supported by the evidence.
Argued orally by James McClure, for appellant, and by R.O. Arrington, for appellee.
Appellant was convicted of a violation of our so-called age of consent statute, Code 1942, Section 2358. In view of the course upon which we have decided, it will be necessary to notice only the assignment of error relating to the alleged failure of the State to furnish evidence by way of corroboration, as required by the statute.
The corroborative proof was sought in the testimony of the witnesses, Merrill and the physician, Dr. Kirk. As to the latter the physical evidences adduced from personal examination of the prosecutrix was found to be equally consistent with innocence, especially in view of his testimony that her condition could innocently have been caused. He was unable to attribute it to an act of the defendant. This falls below the test applied in Bardwell v. State, 155 Miss. 711, 125 So. 85.
The witness, Merrill, testified that about the time and at the place where the alleged assault was committed, he saw a car, identified by other witnesses as being similar to the car of defendant. He saw therein only a man whom he could not identify, seated behind the steering wheel.
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 (as in Jones v. State, 155 Miss. 335, 124 So. 368; Smith v. State, 188 Miss. 339, 194 So. 922; Ferguson v. State, 71 Miss. 805, 15 So. 66, 42 Am. St. Rep. 492; Golding v. State, 144 Miss. 298, 109 So. 731) it remains true that corroboration must be of the secret part or gist of the crime. Hollins v. State, 128 Miss. 119, 90 So. 630; Gillis v. State, 152 Miss. 551, 120 So. 455. Mere opportunity creating a possibility is not enough of itself. Gillis v. State, supra; Grogan v. State, 151 Miss. 652, 118 So. 627.
We do not pass upon the admissibility of the testimony of prosecutrix that on two prior occasions defendant had been guilty of related indecencies toward her, since such testimony of itself would not satisfy the requirement of corroboration. Compare Gillis v. State, supra.
We are enjoined by the applicable statute to require that the crime be proved as it directs, and are not free to adjudge guilt, or permit it to be adjudged, save in accordance therewith.
Reversed and appellant discharged.