Allen v. State

• Decision Date: 06 April 1936
• Docket Number: 32128
• Citation: 175 Miss. 745,166 So. 922
• Court: Mississippi Supreme Court
• Parties: ALLEN v. STATE

166 So. 922

175 Miss. 745

ALLEN v. STATE

No. 32128

Supreme Court of Mississippi

April 6, 1936

Division B

1 INFANTS.

Evidence held sufficient to sustain conviction for violation of the person of a female child under thirteen years of age (Code 1930, sec. 826).

2. CRIMINAL LAW.

In prosecution for violation of the person of a female child under thirteen years of age, question of prosecuting attorney, in examining witness, containing suggestion that defendant might have been guilty of previous offenses with other children held improper but not to require reversal where court sustained objections to testimony (Code 1930 sec. 826).

HON. ARTHUR G. BUSBY, Judge.

APPEAL from circuit court of Lauderdale county HON. ARTHUR G. BUSBY, Judge.

J. A. Allen was convicted for violation of the person of a female child under thirteen years of age, and he appeals. Affirmed.

Affirmed.

L. J. Broadway, of Meridian, for appellant.

It is improper for the prosecuting attorney to ask a series of improper, incompetent, and prejudicial questions, which he knows or has reason to suppose from their character the court will not or ought not to permit to be answered, and which tend to arouse prejudice on f he part of the jury against the defendant.

16 C. J. 892; People v. Grider, 110 P. 586.

A question embracing the very substance of tim issue on trial and calling for an answer which, if accepted, amount s to a determination of the issue, is improper.

40 Cyc., Witnesses, page 2417; 16 C. J. 827, sec. 2093; Collins v. State, 99 Miss. 47, 54 So. 665, Ann. Cas. 1913C, 1256; Green v. State, 97 Miss. 834, 53 So. 415; Fuller v. State, 85 Miss. 199, 37 So. 749, 1023; 16 C. J. 886, Criminal Law, sec. 2221.

The court erred in permitting the district attorney to examine the appellant's wife as to appellant's alleged offenses against ten other little girls; erred in overruling appellant's objections thereto and motion to exclude, especially since she was called for further cross-examination after the appellant had rested his case, and was tantamount to compelling the appellant's wife to testify against him.

Walker v. State, 151 Miss. 862, 119 So. 796; Butler v. State, 24 So. 316; Reddick v. State, 72 Miss. 1008, 16 So. 490.

It is unquestionably true that to permit the witness, the wife of the defendant, to be so examined was in effect compelling the wife to testify against her husband, as to which she was incompetent under the law.

Code of 1930, sec. 1528; 94 Miss. 777, 48 So. 1; Pearson v. State, 97 Miss. 844, 53 So. 689.

The court in declining to order a mistrial necessarily held that the testimony and questions about the "ten other little girls" had done the appellant no harm that was not removed by the sustaining of objections thereto, but that the contrary was true, it seems to me, admits of no doubt. The sustaining of the objection could not and did not undo the wrong already done.

Reddick v. State, 16 So. 490, 72 Miss. 1008.

W. D. Conn, Jr., Assistant Attorney-General, for the state.

It seems that the questions assume as true that appellant had in fact committed the crime with which he was charged. To these questions the defendant entered a general objection it will be noted and, on the case of Jackson v. State, 163 Miss. 235, 140 So. 683, it is submitted that the objection, as made, is insufficient as a predicate for error here.

Callas v. State, 151 Miss. 361, 118 So. 137.

If counsel, in argument, is allowed to characterize facts as a crime in strong language (Callas v. State, 151. Miss. 361; Long v. State, 163 Miss. 535, 141 So. 591) it seems that it would fake an unusual amount of abuse on the part of the district attorney to work a reversal of a conviction upon the ground alleged in appellant brief.

Each time the defendant made any objection to the "ten other little girls" the court sustained it. In view of the defendant's explanation of this phase of the matter it appears that what this court said about the persistence of the district attorney in referring to incompetent matters in Jackson v. State, 158 Miss. 524, 130 So. 729, ought to apply here.

For the general rule of this court with reference to rebuttal testimony, see Roney v. State, 167 Miss. 827, 150 So. 774.

Argued orally by L. S. Broadway, for appellant, and by W. D. Conn, Jr., for the state.

OPINION

Ethridge, P. J.

The appellant, J. A. Allen, a man past fifty years of age, was indicted under section 826, Code of 1930, for violation of the person of a female child under thirteen years of age, being between eight and nine years of age, which section reads as follows: "Any male person above the age of eighteen years, who, for the purpose of gratifying his lust, or indulging his depraved licentious sexual desires shall handle, touch or rub with hands or any part of his body or any member thereof, any female child under the age of thirteen years, with or without her consent, shall be guilty of a high crime and upon conviction thereof, shall be fined in any sum not less than ten dollars nor more than one thousand dollars, or be imprisoned in the state penitentiary not less than one year nor more than ten years, or be punished by both such fine and imprisonment, at the discretion of the court."

The indictment charged: "That J. A. Allen, a male person, above the age of eighteen years, in said County, on the -- day May, A. D., 1935, did unlawfully, wilfully and feloniously, for the purpose of gratifying his lust and indulging his depraved sexual desires, handle and touch with his hands the body of Georgie Leon Terrell, then and there a female child under the age of thirteen years and of the age of eight years, and the said J. A. Allen being then and there, as aforesaid, a male person above the age of eighteen years," etc.

The proof was sufficient to sustain tim allegations of the indictment, and we do not deem it necessary to set out the details of the evidence.

When Mrs. Alien, the wife of the defendant, was testifying, she having been introduced by the appellant, she was asked the following questions and answered as follows:

"Q. Mrs. Allen, I want to ask you if on the morning after this occurrence when Mrs Stone, the little girl's mother, was on her way back from the grocery store passed your house, didn't you call to her, and when you were all alone say that your husband had bothered ten other little girls? A. No sir. (Counsel object, court sustained as to ten other girls.)

"Q. I want to show the conversation, what happened, what went on? A. I did not call her.

"By the court: Sustained as to the other girls."

On cross-examination, Mrs. Stone, who was called in rebuttal of the appellant's witness, was asked by the district attorney the following questions, to which she replied as follows:

"Q. I will ask you if you had a conversation with Mrs. Allen, the wife of Mr. J. A. Allen, on the morning after this occurrence, when you were on your way to the grocery store and she called you in her house. A. I did. (Objected to as not being in rebuttal, overruled by court.)

"Q. Was Mrs. Allen in hearing of that conversation ? A. No, he was sitting in another room.

"Q. Will you tell ...