Summary
In Reeves v. State, 159 Miss. 498, 132 So. 331 (1931), the Court held that the testimony by the State's witnesses may be given full effect by the jury where, as here, an accused does not take the witness stand.
Summary of this case from White v. StateOpinion
No. 29067.
February 9, 1931.
1. RAPE. Uncorroborated evidence of prosecuting witness is sufficient to sustain conviction for rape or attempt to rape, where there are no facts or circumstances or other evidence showing her story improbable; evidence held sufficient to sustain conviction for assault with intent to rape.
In cases of rape and attempt to rape, the prosecuting witness is not required to be corroborated, and, if her evidence makes out a case of guilt, it is sufficient to sustain conviction, where there are no facts or circumstances or other evidence showing her story improbable.
2. CRIMINAL LAW. Testimony of state's witness may be given full effect by jury when accused fails to take witness stand.
While it is the right and privilege of the defendant to refrain from taking the witness stand, and no presumption is to be indulged against him for exercising that right, still the testimony of an adverse witness, when such is the case, may be given full effect by the jury.
3. CRIMINAL LAW. Where given instructions are sufficient to cover law applicable, refusal of other instructions requested is not error, especially where phraseology thereof is complicated or confused.
Where the given instructions are sufficient to fully cover the law applicable to the case, it is not error to refuse other instructions, and especially it is not error to refuse one whose phraseology is so complicated or confused as to be calculated to mislead the jury.
APPEAL from circuit court of Walthall county. HON.E.J. SIMMONS, Judge.
Jas. A. Wiltshire, of Magnolia, for appellant.
It is the contention of the appellant in this case that the evidence as adduced by the state is totally insufficient to support a conviction.
This court has repeatedly held that mere strenuous efforts to persuade yielding to sexual desires would not warrant a conviction of assault with intent to rape.
Easterling v. State, 82 So. 306.
The gravamen of the offense in assault with intent to rape is, and has been construed as the "intent" on the part of the assailant.
Dannley v. State, 87 So. 44, 80 Fla. 70.
It is also being held that a conviction upon the attempt to commit rape would not be sustained, where the evidence does not show the use of violence necessary to overcome resistance.
Austin v. State, 56 So. 179; Cole v. State, 97 So. 895, 210 Ala. 179; Green v. State, 7 So. 326, 67 Miss. 356; Times v. State, 29 So. 91; Ashford v. State, 35 So. 569; Adams v. State, 47 So. 787; Sparkman v. State, 92 So. 812, 84 Fla. 151.
Edwin R. Holmes, Jr., Assistant Attorney-General, for the state.
There is no conflict in the evidence, as the appellant did not take the stand in his own behalf. Therefore, the only question to be decided by this court is whether the testimony of the prosecutrix and the corroborating testimony of the physician and Mr. Ball is sufficient to sustain the conviction of the jury of appellant on a charge of attempt to rape.
The crime of attempt to rape, therefore, contains two essential ingredients, first, an intent to commit the act charged, second, any overt act toward the commission thereof.
It is the state's contention that the testimony offered on behalf of the state affirmatively showed these two essential elements of the crime charged. There is no question that an overt act was committed. The testimony of the prosecutrix which is clear and consistent in every detail with all of the other facts and circumstances shown in the record, and the testimony of the doctor all show that the appellant actually assaulted the prosecutrix and told her the reason for his assault. He told her that he was going to have sexual intercourse with her. Appellant does not deny these facts.
Couch v. State, 130 So. 103; Sanders v. State, 28934 Supreme Court Docket; Spurlock v. State, 130 So. 155.
The instructions are to be read one as supplementing or modifying the others and if taken as a whole they fairly charge the law of the case that is sufficient.
Cummins v. State, 144 Miss. 634; Watkins v. State, 134 Miss. 211.
The appellant, Luther Reeves, was indicted and convicted of an assault with intent to rape one Mrs. Odel Lewis. The prosecuting witness testified in substance as follows:
That she was going to her home in Walthall county from a visit to relatives in Louisiana, and had arrived in McComb City in the afternoon of July 3d about 5:30 o'clock, and was seeking a hotel to spend the night, and that on the way there she met the appellant, Reeves, and asked him as to the hotel, and that he made some inquiry from her as to where she was going. That she told him she was going to Tylertown, and he stated that he was a taxi man, and would like to have the work of carrying her to Tylertown, and that he would carry her right on out to Tylertown that night. That she consented to this, and they started on the journey. When a short distance out from McComb City, there was some tire trouble, and the appellant got out and fixed the tire, which took him until almost nightfall. That as they approached Walkers' bridge between McComb and Tylertown the appellant asked the prosecuting witness if she did not want to go in bathing, and she told him she did not have any bathing suit. That the appellant then asked her if she did not want to have a good time, and she told him she did not do anything like that, that she was a married lady and did not do that. That, when they approached the hill beyond Walkers' bridge, he stated that his engine was hot, and got out and procured some water, which he put in the radiator, and then started to the side of the car in which she was sitting, and some one passed them, and he then got in the car on the other side, asking her what she was doing with the car door open, to which she replied that it had just come open. He told her to keep it shut. Then he told her if she would hug and kiss him she would not have to pay for the trip, and then made indecent proposals to her, and she began to fuss at him and tell him not to act that way. That he then told her he was going to have it anyway, and grabbed her around the waist and pulled her over on him, and told her he was going to have it or die, and she fought him back until she got away from him, and then jumped out of the car, falling on the gravel road, and got up and ran, going to a negro's house just off the road, and they took her then to a white person's residence near by, where a justice of the peace was sent for and papers made out. She was carried to a hospital in Tylertown, and the doctor who attended her said she was in a highly nervous condition and threatened with a miscarriage; she being at the time pregnant. After she left the car, the appellant drove back to the house which they had passed, and asked the man there if he had seen a lady, and stated that he had a lady with him and that she had some kind of spells. He then asked the man in the house to help him hunt for the prosecuting witness, but did not tell him her name. The man declined to go with him, and he then took Mrs. Lewis' suitcase out of the car and gave it to the man, and asked him to give it to her if he saw her. Appellant then left, going to McComb, and was afterward arrested.
The appellant himself did not testify, but introduced several witnesses who testified that they had known him for some time, and that his reputation in the communities in which he had lived for peace was good.
The appellant was convicted and sentenced to five years in the penitentiary.
His first assignment of error is that the verdict of the jury is contrary to the law and evidence, as the evidence is not sufficient to maintain a verdict of guilt. We think there is ample evidence to show guilt from which the jury could reasonably believe that the assault was with the intent to ravish.
It must be remembered that the defendant did not testify, and did not undertake to explain or contradict, in any manner, the testimony of the prosecuting witness.
While it is the right and privilege of a defendant to refrain from taking the witness stand, and no presumption is to be indulged against him for exercising that right, still the testimony, when such is the case, of an adverse witness, may be given full effect by the jury, and the jury are likely to do so where it is undisputed and the defendant has refused to explain or deny.
It is also assigned for error that the testimony of the prosecuting witness was not corroborated by any other evidence. Corroboration in this class of offense is not required, as was held in Monroe v. State, 71 Miss. 196, 13 So. 884, and numerous cases since that time.
It is also assigned for error that the court erred in refusing the instruction marked "refused," which was requested by the defendant. Apart from the instruction itself, the court had given ample instructions to cover the law of the case. The court refused the instruction on the ground that, because of the selection and arrangement of the words in the instruction, it was misleading and confusing. Without setting out the instruction, we think it was not error to refuse it.
The judgment of the circuit court will therefore be affirmed.
Affirmed.