Opinion
No. 33051.
May 9, 1938.
RAPE.
Evidence sustained conviction for rape allegedly committed in daytime by party whom prosecutrix knew, where prosecutrix, whose statements were reasonable and were not contradictory on any material point, was corroborated as to fact of crime having been committed against her.
APPEAL from the circuit court of Monroe county; HON. THOS. H. JOHNSTON, Judge.
Jesse M. Coleman, of Aberdeen, for appellant.
The jury decided the case against the weight of the evidence. The only witness that testified as an eye witness for the State was Mrs. Gertrude Brown, the prosecutrix, and her testimony is so unreasonable, saturated with contradictions and so doubtful as to the true facts that the jury evidently decided the appellant guilty because of the foul nature of the case and the atmosphere of the court room rose like a fog in the early morning from lowlands.
The jury tried the case contrary to the law presumes the defendant innocent until the State proves him guilty beyond all reasonable doubt, and under all the evidence pro and con evidently the jury's verdict was contrary to the law in this case taking the case as charged the nature of same the feeling by the public it would be hard for a defendant to obtain a fair, just and righteous verdict with the atmosphere saturated with bias, prejudice and ill feeling they nearly always follow in such cases in the country where our southern womanhood is attacked, but on the other hand take the appellant whose character for peace and violence is presumed to be good, and according to this record the only thing that can be said against him was that he once had in his possession one-half pint of liquor for which he plead guilty.
The court erred in not granting the request of the defendant motion after the state had rested to direct a verdict to acquit the defendant, as the prosecutrix told such an unreasonable story as to what happened and what she did after she left home, and it was the duty of the State to prove the defendant below guilty beyond all reasonable doubt, and we submit that the court erred in not so instructing the jury to find the defendant not guilty.
W.D. Conn, Jr., Assistant Attorney-General, for the State.
This court has held that a doctor's examination of a rape victim can be used as evidence (Simmons v. State, 105 Miss. 48, 61 So. 827), and it seems that the rule should be the same where the matters testified to are observable and understandable by anyone, even though not a physician.
This court has held that a cautionary instruction in a rape case is optional with the trial judge. Error cannot be predicated on the refusal of such instruction.
Watkins v. State, 134 Miss. 211, 98 So. 537.
Mrs. Brown accounted for her absence of resistance to use of a pistol in the hands of appellant. Milton v. State, 142 Miss. 364, 107 So. 423. It was never developed at the trial what this 14 year old child understood by the term "rape." It is entirely possible that she was referring to the act of penetration rather than the complete act, since it is apparent from her testimony that appellant was interrupted during his stay at the house by his son, who came there. Under all the circumstances, we submit that this was peculiarly a case for the jury and that the jury's finding should not be disturbed.
Argued orally by Jesse M. Coleman, for appellant, and by W.D. Conn, Jr., for the State.
The appellant was tried and convicted of the crime of rape in the circuit court of Monroe county, and the jury having disagreed as to the punishment to be inflicted, the court imposed the sentence of life imprisonment in the state penitentiary, as provided by statute in capital cases.
After a careful consideration of the case as made by the entire record, we find that no error of law was committed, and that the testimony was ample to sustain the verdict. No good purpose could be served by setting out the sordid details of the crime disclosed by the testimony. It is sufficient to say that in the main the story of the prosecutrix was reasonable; that none of her statements were contradictory on any material point; that she was abundantly corroborated by other witnesses as to the fact of such a heinous crime having been committed against her; that she knew the appellant, who lived only a short distance from her home in the country, and, in view of the fact that the crime was committed in the daytime, could not have been mistaken in her identification of him as the guilty party. Neither was there any motive suggested or shown as to why she should have falsely accused him.
The case was peculiarly one for the jury as to the interpretation which could reasonably be placed on such statements of the prosecutrix on behalf of the state as are contended here by appellant to be unreasonable, and we do not feel justified in disturbing the verdict of guilty.
Affirmed.