Bass v. State, 43641

• Decision Date: 07 February 1966
• Docket Number: No. 43641,43641
• Citation: 182 So.2d 591,254 Miss. 723
• Parties: Richard BASS v. STATE of Mississippi.
• Court: Mississippi Supreme Court

Page 591

182 So.2d 591

254 Miss. 723

Richard BASS v. STATE of Mississippi.

No. 43641.

Supreme Court of Mississippi.

Feb. 7, 1966.

R. Jess Brown, Jackson, William G. Kopit, Scarsdale, N. Y., Melvin Wulf, Paul Chevigny, New York City, for appellant.

Joe T. Patterson, Atty. Gen., Jackson, by G. Garland Lyell, Jr., Asst. Atty. Gen., for appellee. JONES, Justice.

This case comes from the Circuit Court of Warren County where the appellant was convicted of rape of a white woman. He was sentenced to death.

We are compelled to reverse the case.

The victim was a white lady 54 years of age who resided alone on Bazinsky Road in Vicksburg. She was employed in one of the stores in the city and on September 9, 1964, after work, returned to her home. The city dump is a short way beyond her house traveling from town. About 10:15 that night she went to bed. Somebody knocked on her front door after she had gone to sleep. When she asked, 'Who is it?' he replied by asking the way to Vicksburg. She told him the direction and went back to sleep. Later that night somebody broke through the side door of her house. When she jumped up, be reached in the corner, picked udp the victim's rifle and pointed it at her. Then he told her to undress and get in bed; there the act was committed. Afterward, he made her put on her gown. He dragged her to the telephone where he pulled the receiver off, apparently thinking he was pulling it from the wall, but instead he had pulled out a lamp plug. He then took her behind the door through which he had come, threw her to the floor and choked her, and beat her until she was unconscious. She did not know the time when he came nor when he left. Later that morning, having regained consciousness, she went to a neighbor's house and reported what happened. Doctors were called to administer necessary treatment to her. It was about 5:30 A.M. when she went to her neighbor's house.

There is no question as to the commission of the act. The only issue is the identity of its perpetrator.

The prosecutrix testified it was dark, and she could not see the face of the person well enough to identify him. She did know that he was a tall Negro, identifying him as a Negro by his voice, and that he wore a narrow-brim hat. The case was circumstantial. Among the circumstances developed was the fact that appellant was employed by the City, assisting in the hauling of garbage at night. On the afternoon before, he had been in the neighborhood of this house working upon a ditch for another employer. On the night of the alleged assault, he had gone on one trip to the garbage disposal dump; but, on the next trip, he did not go. He had left the truck at a point twenty-five or thirty minutes' walking distance from the prosecutrix's house, explaining to the driver of the truck that he wanted to see his mother and get some money from her. He left the truck. The next time the driver saw him he told the driver that he had not been able to get any money from his mother, and that he had no money. Later, he told another version of his absence from the truck--that he was going to visit a school teacher whom he had met or seen the day before in a grocery store, and he was expecting or hoping to have intercourse with her.

The prosecutrix testified that when she went to bed that night she had a dollar bill and a fifty-cent piece in her purse. Early that morning, one of the policemen, while investigating the case, opened her purse and found only a nickel and one or two pennies. The truck driver said that, when he saw the appellant returning from one of his absences from the truck, he asked him if he wanted to go to town. Appellant requested him to wait until he got some cigarettes. The man operating the place where the cigarettes were secured testified that appellant came in and asked for change for a fifty-cent piece so he could get some cigarettes from the cigarette machine.

One of the policemen testified that while examining the scene of the crime he found a leather strap, being a part of a bootlace, on the floor just a few feet from the door that had been broken down. When they talked to appellant to ascertain his whereabouts the night before, he was wearing boots.

The appellant voluntarily came to the police station with the police that afternoon and talked with them. When the police talked to the driver of the truck, they ascertained differences in the statements of the appellant. Because of the circumstances which they had learned, to-wit: the description of appellant; the fact that he was in the vicinity; the fact that he was wearing boots with leather boot straps; and the various statements by him, the police arrested Bass at 9:30 P.M., the night after the assault.

After the arrest of appellant, he was brought to Jackson for further investigation. While in Jackson, he was asked by police officers what clothes he wore the night before. According to the police officers, he stated that the pants and shirt which he wore the night before were at his home; and, if they would contact his wife, she would give them to the police. He and his wife were residing at the home of his mother-in-law.

Thereupon, the police in Jackson telephoned the police in Vicksburg, and the officers there went to the home and secured the pants and shirt.

The boots which appellant was wearing were removed from his feet when he was arrested, and it was discovered that one of the boot straps was shorter than the other. The broken piece had already been sent to Baton Rouge for examination by the Louisiana State Policemen's Laboratory. After removal of the straps from the boots, they (the straps) also were sent there.

When the shirt and pants were obtained from appellant's wife, they, together with bed clothing and the victim's night clothes, were forwarded to the FBI laboratory at Washington, where they were examined.

The FBI report stated that there was blood on the shirt worn by appellant. When asked about this spot on his shirt, Bass said it was fish blood; that he went to a fish market in Vicksburg, and got the blood on his shirt there. The FBI report showed that it was human blood.

There was also blood found on the bed clothing on which also was a hair of Negroid origin. The blood stain was not sufficient to be classified, nor was the hair sufficient to be identified as one of appellant's.

Human semen was found on the flap of appellant's trousers. The school teacher whom he had told the driver he was going to visit denied making a date with him, and said he was not at her home that night.

The laboratory technician of the Louisiana Police Laboratory testified regarding the shoelaces. He said that, while it was of a shoelace found on the floor was a part of the shoelace in the boot, he could say that there were no circumstances by which he could assert positively that it did not come from that shoelace. The fragment of shoelace, when coupled with the shorter shoelace taken from the boot, made a string approximately three inchs longer than the other shoelace. However, the technician testified this could easily occur by reason of the strain and pull on the shoelace at the time it broke.

These were briefly the circumstances in evidence when the state rested.

The rule had been invoked. The prosecutrix had no opportunity to hear Bass talk prior to her appearance on the stand. She did testify that she would be able to identify the voice of the man if she could hear it. When appellant was on the stand, the prosecutrix returned to the courtroom and listened to him testify. After the defense rested, she was recalled by the state, and over the strenuous objection permitted to testify that she had now heard appellant's voice, and that she could identify his voice as that of the person who attacked her.

There are numerous assignments of error, the first of which is that the lower court erred in failing to sustain a motion to quash the indictment and the special venire because of alleged systematic exclusion of Negroes from the jury list.

On the hearing of this motion, it was shown that the total white male population of Warren County over twenty-one years of age was 6,274, and the total non-white male population over twenty-one was 4,677. Thus, the non-white male population of the county over twenty-one years of age was 42% of the total male population over twenty-one.

It was shown that there were 10,000 or 11,000 qualified electors, of which number approximately 1500 were colored. The appellant introduced evidence that the number of Negroes on the jury lists of the county from the years 1957 to 1964, both inclusive, ran from none in 1957 to six in 1964, and, in the intervening years, the number was less than six. The state introduced three of the supervisors who testified they followed the law in drawing the jury list. The circuit clerk testified to the same effect. The only evidence to conflict in any way with the figures for the years aforestated was a statement by the circuit clerk that for the years 1963 and 1964 there were thirty-five or forty Negroes on...