Cannon v. State, 44002
| Decision Date | 03 October 1966 |
| Docket Number | No. 44002,44002 |
| Citation | 190 So.2d 848 |
| Parties | Norman CANNON v. STATE of Mississippi. |
| Court | Mississippi Supreme Court |
W. Arlington Jones, Lawrence D. Arrington, Hattiesburg, for appellant.
Joe T. Patterson, Atty. Gen., by G. Garland Lydell, Jr., Asst. Atty. Gen., Jackson, for appellee.
Norman Cannon was convicted of rape in the Circuit Court of Forrest County. The jury's verdict fixed his punishment at confinement in the penitentiary for life, and he was so sentenced.
There was no assignment of error challenging the sufficiency of the evidence to support the verdict.
Errors assigned relate to procedural matters, the granting and refusing of instructions, certain remarks of the district attorney in his argument to the jury, objected to as prejudicial, and the overruling of appellant's motion for a new trial.
The factual issue presented for the jury's determination was whether or not the victim had voluntarily consented. The case made by the evidence for the prosecution was, in substance, that appellant Cannon had gotten his victim into his car upon the pretext that he wanted her to 'baby sit' with his children; actually, he had no children. After she was in his car, he drove out a lonely road and into some woods, restraining her meanwhile with threats and exhibiting a knife. When he arrived there, appellant took the girl into the woods and by means of threats enforced by exhibiting his knife, compelled her to disrobe and then raped her.
He abandoned her there and she made her way on foot back to a traveled highway where she attracted the attention of some people in a car and reported to them what had happened. She was taken almost immediately to a doctor whose examination disclosed a torn and bleeding posterior hymenal ring and the presence of semen.
Following the arrest, his counsel asserted that the appellant was insane, and, upon their motion, he was examined at Mississippi State Hospital at Whitfield but was found to be without psychosis.
A considerable portion of the evidence for the prosecution appearing in the record and relating to the identification of appellant as the attacker became irrelevent when, as a witness in his own behalf, he admitted the act and rested his defense upon the ground that the victim had consented voluntarily.
Several grounds for reversal are assigned and argued.
Appellant contends that the trial court was in error in-(1) requiring an officer of the court to be present in the room during the conference of his counsel with the victim and her grandmother, both of whom had been subpoenaed as defense witnesses; (2) in granting and refusing certain jury instructions; (3) in failing to enter a mistrial because of remarks made by the district attorney in his argument to the jury; (4) in failing to enter a mistrial because the victim's grandmother, after completing her testimony, returned to the courtroom although the rule excluding witnesses from the courtroom had been invoked; and, (5) in overruling a motion for a new trial.
As to the first assignment, the victim was a fifteen year old girl who lived with her grandmother, an elderly woman. Both testified for the prosecution and were exhaustively cross-examined. It was not shown, and there is nothing to indicate, that the presence of an officer in the room during the conference with these witnesses in any way restricted or prejudiced appellant's defense. It was, under the circumstances, a matter within the sound discretion of the trial court. It does not appear from the record that there was an abuse of discretion in this case. Mackie v. State, 138 Miss. 740, 103 So. 379 (1925); White v. State, 52 Miss. 216 (1876).
Appellant criticizes an instruction granted the prosecution which informed the jury that it was warranted in convicting appellant if it should believe from the evidence beyond a reasonable doubt that he was guilty of the crime charged. It is contended by appellant that this instruction should have instructed the jury that before they could convict appellant, they must believe from the evidence, not only that he was guilty beyond a reasonable doubt, but to the exclusion of every reasonable hypothesis other than that of guilt.
Such a limitation is proper in an instruction only where the State's case depends upon circumstantial evidence. This is not a case in which the guilt of defendant was established by circumstantial evidence. The jury had before it the direct testimony of the victim. Also, there was strong corroborative medical and other evidence supporting her testimony.
Appellant admitted that he committed the act but asserted that consent had been given voluntarily. It was the province of the jury to reconcile discrepancies and to resolve the conflicts in the testimony. The instruction correctly stated the law, and the trial court did not err in granting it. Lackey v. State, 215 Miss. 57, 60 So.2d 503 (1952); Bolin v. State, 209 Miss. 866, 48 So.2d 581 (1950); Sanders v. State, 192 So. 344 (Miss.1939); Jones v. State, 130 Miss. 703, 94 So. 851 (1922).
Nor was the instruction defective in failing to define the phrase 'beyond reasonable doubt.' The meaning of these words is not obscure and it must be assumed that the members of the jury were men of ordinary intelligence and capable of understanding their meaning. Boutwell v. State, 165 Miss. 16, 143 So. 479 (1932).
In fact, it has been held that it is error for the trial court to instruct as to the meaning of 'reasonable doubt.' Simmons v. State, 206 Miss. 535, 40 So.2d 289 (1949).
Other criticisms of the instructions granted the prosecution clearly are without merit.
Appellant next complains that the trial court committed error in refusing to instruct the jury that if it believed a statement taken from appellant by officers following his arrest was true that they should acquit him. This statement was self-serving and exculpatory and was introduced by the appellant. The instruction in question was erroneous and obviously was an improper comment upon the weight of the evidence. The statement, in substance, contained the same version of the affair given by appellant when he testified as a witness in his own behalf. This defense-that the girl consented voluntarily-was amply covered by other instructions. The trial court was not in error in refusing to grant the requested instruction. No authority is cited supporting appellant's contention that the trial court's refusal to give this instruction was error.
It is contended on behalf of appellant that the trial court should have entered a mistrial because of certain remarks made by the district attorney in his argument to the jury. The clothing of the victim had been retrieved by the officers from the place where the attack had occurred...
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...be assumed that the members of the jury were men of ordinary intelligence and capable of understanding their meaning.” Cannon v. State, 190 So.2d 848, 851 (Miss.1966). Distinctions among “reasonable doubt, all possible doubt, beyond a shadow of a doubt, and the like,” are not properly the s......
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