Opinion
No. 41955.
November 6, 1961.
1. Criminal law — rape — evidence — res gestae — testimony with reference to strips of clothing used in tying victim of assault properly admitted.
Pair of torn pants belonging to husband of prosecutrix, which had been torn into strips for use in tying victim of assault, was part of the res gestae and was properly admitted in prosecution for rape.
2. Rape — evidence — conviction sustained.
Evidence was sufficient to sustain conviction of rape.
3. Juries — juror not disqualified by relationship to deputy sheriff who was not a witness in case.
Juror, who was a brother of deputy sheriff and who had not prejudged the case, was not disqualified because of relationship to deputy sheriff, who manifested no interest in outcome of trial and who did not testify in the case.
Headnotes as approved by McGehee, C.J.
APPEAL from the Circut Court of Coahoma County; CURTIS M. SWANGO, JR., J.
Ralph O. White, Hill Jarratt, Charles Finch, Batesville, for appellant.
I. The trial court erred in everruling the motion of the defendant for a directed verdict, and the refusal of the trial court to direct a verdict for the defendant resulted in a verdict contrary to the overwhelming weight of the evidence. Carr v. State, 192 Miss. 152, 4 So.2d 887; Miller v. State, 198 Miss. 277, 22 So.2d 164; McMillian v. State, 218 Miss. 264, 67 So.2d 290.
II. The trial court erred in overruling the motion of the defendant for a new trial, which motion the trial court should have sustained for the reason that the verdict of the jury was contrary to the overwhelming weight of the evidence. Dickerson v. State (Miss.), 54 So.2d 925.
III. The Court erred in overruling the motion of the defendant that Mr. Thomas Farris be excused from the jury for cause. Cantrell v. Burgess, 222 Miss. 494, 76 So.2d 373; Mississippi Power Co. v. Stribling, 191 Miss. 832, 3 So.2d 807; Mississippi Public Service Co. v. Collier, 183 Miss. 271, 183 So. 379; Sec. 31, Constitution 1890.
IV. The Court erred in permitting the introduction of clothing of the prosecuting witness, because these items of clothing were highly inflamatory and prejudicial to the defendant. Gaston v. State, 239 Miss. 420, 123 So.2d 546; Scarbrough v. State, 204 Miss. 487, 37 So.2d 748.
V. The Court erred in permitting the prosecuting witness to give evidence as to positive identification of defendant after prosecuting witness had testified that she had a pillow case over her head, as such identification could be based only upon sound of voice at a time when the person committing the alleged act of rape would be in a state of excitement generated by passion to the extent that his voice would not be normal, and at a time when prosecuting witness, according to her own statements, was in great fear for her life and for the lives of her children, so that she would be in a state of excitement.
G. Garland Lyell, Jr., Asst. Atty. Gen., Jackson, for appellee.
I. The testimony of the prosecutrix not only stands uncontradicted and unimpeached but is strongly corroborated by the physical evidence and the medical testimony. The only argument worthy of consideration has to do with the identification of the rapist by the sound of his voice, and such argument under the facts of this case is without merit. The record clearly shows that before the pillow case was secured over her head she had more than ample opportunity to observe the physical characteristics of the three men as well as the distinctive sound of their voices. The evidence further shows conclusively that Foreman was actively engaged in making good his escape and his conduct indicates that he not only had nothing to do with the rape but did what he could under the circumstances to prevent it. Because of the disparity in size between Lee and Cook it was easy enough for the prosecutrix, though blinded by the pillow case, to identify each one on personal contact and her testimony was very positive with respect to identification of each by voice. Such testimony is competent, direct and positive proof of identity and the weight to be given to such evidence is for the jury. There being little, if any room for error in this case, the verdict of guilty was warranted. Cody v. State, 167 Miss. 150, 148 So. 627; Pickett v. State, 164 Miss. 142, 143 So. 692, 144 So. 552; Taylor v. State (Ala.), 20 So.2d 239; Anno. 70 A.L.R. 2d 995 et seq.; 22A C.J.S., Criminal Law, Sec. 616(b) (4); Underhill's Criminal Evidence (5th ed.), Herick, Sec. 128; Wharton's Criminal Evidence (12th ed.), Anderson, Sec. 183.
II. The Court did not err in refusing to excuse juror Thomas Farris for cause. Gardner v. State, 145 Miss. 215, 110 So. 589; Goldsby v. State, 240 Miss. 647, 123 So.2d 429; State v. Cook, 204 S.C. 295, 28 S.E.2d 842.
III. The Court did not err in permitting the introduction of clothing of the prosecuting witness. Wood v. State, 221 Miss. 901, 74 So.2d 851; 22A C.J.S., Criminal Law, Secs. 711, 712, 713.
This is a companion case to that of Ellic Lee, alias Ellis Lee, cause No. 41,954, and the records of the two cases are substantially the same.
The appellant and Ellic Lee were indicted separately in Panola County, Mississippi, for having forcibly raped Mrs. Mary Evelyn Ledbetter on June 6, 1960, at her home about ten or twelve miles west of Batesville in Panola County.
Upon motion duly filed requesting a change of venue, the motion was sustained and the cases sent to Coahoma County for trial, where both defendants were found guilty as charged and sentenced to suffer the death penalty.
The record discloses that these two cases were assigned by the Hon. Ed. H. Green, Circuit Judge of the judicial district in which Coahoma County is located, to the Hon. Curtis M. Swango, Judge of the circuit court judicial district in which Panola County is located.
Judge Swango saw to it that every legal right of the accused was protected.
The commission of the crime against Mrs. Ledbetter is not controverted either by lay or medical testimony. There was no testimony offered for the defense. It would serve no useful purpose to recite in this opinion the sordid details of the testimony relating to the commission of the crime. Suffice it to say, the prosecutrix, a young mother of twenty-three or twenty-four years of age, was working in her garden on the afternoon of June 6, 1960, when three escapees from the state penitentiary, Willie Foreman, Howard Cook and Ellic Lee, alias Ellis Lee, appeared at her home armed with firearms, forcing her into her home and shutting her three children up in a closet, tying her hands behind her, tying her feet to the rail of the foot of the bed, and according to her testimony, the said Willie Foreman placed a pillow case over her head in order that she might not be able to see in which direction they departed in the automobile that was parked in the driveway. It was then that the appellant and Lee committed the crime charged. It clearly appears from the record that the escaped convict Willie Foreman had no part in the commission of the crime and that his purpose at the home of the victim was only to use her automobile and obtain some clothing of her husband in making their getaway.
The positive testimony of Mrs. Ledbetter was to the effect that the appellant, Howard Cook, guarded her with a firearm in the kitchen for at least five minutes or more prior to the time that Foreman suggested that they take her in the bedroom and tie her up. She had ample opportunity to identify the appellant as one of her assailants and did so.
(Hn 1) The proof further disclosed that a pair of pants belonging to Mr. Ledbetter was torn into strips for use in tying the victim of the assault. In assignment No. 4 it is complained that it was error to permit the introduction of this physical evidence, as well as the pillow case. But we think it was a part of the res gestae and that no error was committed in permitting them to be introduced in evidence.
(Hn 2) Three of the assignments of error are Nos. 1, 2 and 5, dealing with the sufficiency of the evidence to sustain the conviction, which we think are without merit. (Hn 3) Assignment No. 3 is in regard to a juror, Mr. Farris, who is a brother of a Deputy Sheriff in Coahoma County. This deputy sheriff did not testify in the case and does not appear from the record to have manifested any interest in the outcome of the trial. The only officer who testified was the Sheriff of Panola County, who is not shown to have been related in any manner to any of the jurors.
The Supreme Court of South Carolina had a similar question in the case of State v. Cook, 204 S.C. 295, 28 S.E.2d 842, in which it was held that the relationship of a juror to one of the sheriff's force would not be grounds for disqualification. Cf. also Gardner v. State, 145 Miss. 215, 110 So. 589, and Goldsby v. State, 240 Miss. 647, 123 So.2d 429. What was said in the Goldsby case as to the juror is applicable to the juror Farris in the instant case. In the Goldsby case, the Court said: "There is no evidence in the record to show that Martin (the juror) had prejudged the case, or was unable to serve fairly and impartially as a juror. On the contrary, his testimony on voir dire shows that he was fair and impartial." The record shows clearly that this was true as to the juror Farris.
The testimony of the prosecutrix was positive, clear and convincing as to the facts in the case, and the fact of the commission of the crime was corroborated by medical testimony; and as to her identification of the appellant and Lee as her assailants, Mr. Grimes testified that she reported the incident to him almost immediately. Her testimony clearly established the commission of the crime and it is wholly uncontradicted and unimpeached. As stated, she had ample opportunity to identify both the appellant and Lee before the pillow case was placed over her head, and moreover the Sheriff of Panola County found the appellant under a house late that afternoon and when he came out he was wearing a pair of her husband's trousers. When he was arrested, they found the victim's watch in his pocket, which she testified he had taken from her.
The proof shows without dispute that Willie Foreman warned the appellant and Lee that they were going to "get the gas chamber" if they carried out their purpose. Nevertheless, they persisted.
It is rare that a record in a capital case is as free of error as in this case. We find no reason whatsoever for disturbing the verdict of the jury, judgment and sentence of the trial court.
Affirmed and Tuesday, December 19, 1961, is set for the date of execution of the death sentence.
All Justices concur.