Carr v. State
| Decision Date | 08 April 1968 |
| Docket Number | No. 44727,44727 |
| Citation | 208 So.2d 886 |
| Parties | Jerry CARR v. STATE of Mississippi. |
| Court | Mississippi Supreme Court |
Melvin, Melvin & Melvin, Laurel, for appellant.
Joe T. Patterson, Atty. Gen., by Guy N. Rogers, Asst. Atty. Gen., Jackson, for appellee.
Jerry Carr was indicted, tried and convicted of the crime of rape at the January 1967 Term of the Circuit Court of Covington County, Mississippi, and he was sentenced to life imprisonment. He had been unable to obtain bond and had been in jail for 92 days before the trial. The appellant is a young married man 29 years of age. He went to the third grade in school. He weighed 145 pounds at the time of the alleged crime. The prosecutrix was at the time of the alleged crime 16 years of age. She was a high school junior and weighed 120 pounds.
We have examined the record in this case carefully and are convinced that this case should be retried, and for that reason we do not set forth the testimony except where it is necessary for the purpose of this opinion.
The appellant made a motion requesting the court to exclude the sheriff and his deputy from the courtroom during the trial, so as to prevent these witnesses from hearing the testimony of the prosecutrix. We have had to deal with this issue in prior cases, and we decided that it is largely a matter within the sound discretion of the trial judge. Fondren v. State, 253 Miss. 241, 175 So.2d 628 (1965). This is also the federal rule. See Laird v. United States, 252 F.2d 121 (4th Cir. 1958). This rule would certainly be applicable in a case where a defendant is charged with rape and is at all times under the protection of the court. We understand, however, how the defendant may be at a disadvantage when the most important witnesses are permitted to hear the testimony of each other, and this is particularly true where the officers use expressions of the prosecutrix. For example, an officer in speaking of scratch marks on the face of the defendant, said they were 'fingernail scratches.'
The sheriff of Covington County and his deputies testified that the prosecutrix came to the sheriff's office and made complaint that she had been raped. The officers went to the scene of the alleged crime and testified that the prosecutrix pointed out two places where the grass and broom sage had been disturbed and mashed to the ground. The officers designated these spots as the first place and the second place. One said that the second place was the 'scene where the alleged crime took place.' One officer testified that the first scene was 'where the grass and all had been mashed down and looked like where some scuffling, and a fresh bush had been broken * * *.'
The defendant's attorney objected to this testimony upon the ground that this evidence was 'hearsay evidence.'
The rule on this subject in Mississippi and in most of the United States is that the testimony of the prosecutrix, or other witness, is admissible to corroborate her testimony to show that shortly after the commission of the alleged offense she made a complaint, and when, where and to whom it was made. This evidence is not admitted as proof that the crime was committed, but merely to rebut the inference of consent that might be drawn from her silence.
By the great weight of authority, evidence of the prosecutrix's complaint must be confined to the bare that a complaint was made and the details or particulars of the complaint are not admissible as substantive testimony to bolster the testimony of the prosecutrix as to the guilt of the accused. Clark v. State, 124 Miss. 841, 87 So. 286 (1921); Frost v. State, 100 Miss. 796, 57 So. 221 (1912); Frost v. State, 94 Miss. 104, 47 So. 898 (1909); Jeffries v. State, 89 Miss. 643, 42 So. 801 (1907); Dickey v. State, 86 Miss. 525, 38 So. 776 (1905); Anderson v. State, 82 Miss. 784, 35 So. 202 (1903); Ashford v. State, 81 Miss. 414, 33 So. 174 (1903); 75 C.J.S. Rape § 53 (1952).
The rule has been modified in this state so as to permit the prosecutrix to 'identify the time and place with that of the one charged.' Lauderdale v. State, 227 Miss. 113, 85 So.2d 822 (1956). This modification in the rule does not premit the officers to add opinion testimony to bolster the testimony of the prosecutrix.
In the instant case the sheriff identified pictures of the alleged scene taken by him and he then explained a broken bush he had cut and presented in evidence. The prosecutrix said the officers took pictures, but she did not identify the pictures as being the scene of the alleged crime. If these pictures truly represented the scene where she said she was attacked, the best evidence of that fact was the testimony of the prosecutrix, who would know the 'first place' and the 'second place' better than anyone else. See Frost v. State, 100 Miss. 796, 57 So. 221 (1912).
During the argument before the jury, the district attorney said that the defendant's story was 'fantastic' and that defendant was of a 'beastly nature.' The defendant objected, and now complains that the trial court permitted grave error in overruling his objections to this argument. The defendant has cited several cases in which this court has condemned prejudicial vilification of a defendant by the district attorney. This is particularly true where the defendant has not testified.
A trial judge has considerable latitude in controlling the argument of the attorneys, and we do not deem it necessary to pursue this point in depth here. See Moss v. State, 208 Miss. 531, 45 So.2d 125 (1950). This case must be retried and the argument will not likely be repeated. We point out, however, that such vitriolization is not calculated to guarantee a fair trial. Moreover, its use in the instant case adds to the overall picture which has led this Court to doubt that the defendant received the due process required by the Mississippi Constitution.
The appellant complains that the trial court erred in restricting the number of character witnesses defendant would be permitted to use. We do not believe this ruling of the court in the instant case was error, because this Court has pointed out in Fugler v. State, 192 Miss. 775, 7 So.2d 873 (1942), that where the appellant offered to introduce twenty witnesses who would testify that his character for peace and violence was good, and the state's district attorney announced that he did not intend to challenge the appellant's character, the action of the lower court in limiting the testimony on this point to six witnesses was not erroneous. In the instant case the district attorney did not challenge the character of the defendant and we are of the opinion that limiting the defendant to eleven character...
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...speaking for a unanimous Court, clarified the distinction between the weight and the sufficiency of the evidence: In Carr v. State, 208 So.2d 886, 889 (Miss.1968), we stated that in considering whether the evidence is sufficient to sustain a conviction in the face of a motion for directed v......
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