Anderson v. State

• Decision Date: 16 November 1903
• Citation: 35 So. 202,82 Miss. 784
• Court: Mississippi Supreme Court
• Parties: JOHN ANDERSON v. STATE OF MISSISSIPPI

35 So. 202

82 Miss. 784

JOHN ANDERSON v. STATE OF MISSISSIPPI

Supreme Court of Mississippi

November 16, 1903

FROM the circuit court of Yazoo county. HON. ROBERT POWELL, Judge.

Anderson appellant, was indicted, tried and convicted of rape, and appealed to the supreme court.

The facts, as stated by the prosecutrix, were in substance as follows: "I was going along about twelve o'clock. I was afraid. I knew there was a man behind me, and the faster I walked the faster he walked, and he said, 'Old lady, I want some.' I said, 'I have not anything for you.' He took my stick out of my hand, and told me to cock my leg up, and put it in. He laid me down by the side of a bush, and said, 'Put it in.' He told me to lie down, and I did not lie down fast enough, and he laid me down himself. He got on me, put it in, and stayed a long time. I said, 'Lord have mercy,' and he said, If you don't hush, I will choke you to death.'"

The last clause of the second instruction for the state mentioned in the opinion of the court, is as follows "When a female submits to sexual intercourse through fear of personal violence, and to avoid the infliction of great personal injury upon herself, such carnal knowledge is rape." The opinion of the court contains a further statement of the facts.

Case reversed and cause remanded.

Barnett & Perrin, for appellant.

It is well settled that appellate courts, and especially this court, in cases of alleged rape, do not hesitate to closely investigate the evidence, and unless fully satisfied of the truthfulness of the charge, will set aside the verdict.

We are not lacking for authority in making this statement, and call the court's attention to the following cases: Monroe v. State, 71 Miss. 196; Green v. State, 67 Miss. 356; Hollis v. State, 9 So. Rep., 67; Harvey v. State, 26 So. 931; Tymes v. State, 29 So 91.

Taking as true everything to which the prosecutrix testified and admittting, for the sake of argument, that the defendant was present and had carnal knowledge of her, the evidence fails to Show a case of rape.

Instruction No. 1 attempts to define rape, but winds up with the limitation as follows: "This is true whether you believe from the evidence that she made any active resistance to his assault upon her or not." We can conceive of cases, namely, where the defendant was drugged or where she was unconscious, or where she was imposed upon by fraud, where such a limitation, if the evidence warranted it, might be proper, but surely in the case at bar, where no such evidence was offered, the limitation was unwarranted, as a tacit consent without any act of resistance could not amount to rape.

The defendant was prejudiced by the conduct of the court in refusing to sustain the objections raised to the testimony of the witness, Sallie Dixon, in allowing her to state to the jury what her mother had said to her after the commission of the alleged offense. It is true the court finally sustained the objection, and attempted to qualify the nature of the hearsay evidence that was admissible, but the mischief had already been done, and the district attorney had based a number of questions upon the fact that the prosecutrix had told the witness that the defendant, using his name, had ravished her. 23 Am. & Eng. Enc. Law (2d ed.), 874.

J. N. Flowers, assistant attorney general, for appellee.

From the facts testified to by the witnesses, the jury could infer that there were violence, resistance, intimidation, force -- all the elements of a crime.

The two instructions given for the state are not erroneous.

OPINION

TRULY, J.

Appellant was convicted of rape, and appeals. The first instruction for the state tells the jury that if they believe that the defendant forcibly and against the will of the prosecutrix carnally knew her, then he was guilty as charged, and the jury should so find; and "this is true whether you believe from the evidence that she made any active resistance to his assault upon her or not." This is tantamount to telling the...