Clark v. State

• Decision Date: 14 March 1921
• Docket Number: 21339
• Citation: 87 So. 286,124 Miss. 841
• Court: Mississippi Supreme Court
• Parties: CLARK v. STATE

87 So. 286

124 Miss. 841

CLARK v. STATE

No. 21339

Supreme Court of Mississippi

March 14, 1921

March 1921

1 RAPE. Details of assault told to third party by prosecutrix erroneous.

In a trial for attempt to rape, it is error to permit testimony of the details of the assault told to a third party by prosecutrix.

2 RAPE. Details told by prosecutrix to third person during unofficial investigation inadmissible.

It was error to admit testimony of third person as to details of assault told to him by prosecutrix, in connection with, and the result of, an unofficial investigation of guilt of accused by the witness.

HON. W E. STONE, Judge.

APPEAL from circuit court of Tallahatchie county, HON. W. E. STONE Judge.

Flem Clark was convicted of assault with intent to rape, and he appeals. Reversed and remanded.

Judgment reversed, and case remanded.

A. H. Stevens, for appellant.

The next assignment of error is that the court erred in receiving, over objection of appellant, the testimony of W. R. Cross and Georgia Miller, for the state, as to the acts and statements of the prosecutrix in identifying the appellant and relating the alleged commission of the crime. That these witnesses could not testify that the prosecutrix detailed to them the occurrence or the identity of the person charged with the crime is so well established in this state that it is with great hesitation that we enter upon a discussion of this question.

We are quoting from Anderson v. State, 35 So. 202-203, in an opinion by Judge TRULY: "Ordinarily any and all statements made by a party assaulted after the commission of the crime is hearsay, and not admissible. An exception is made in the case of rape alone, but even in that case no statements made by the prosecutrix are admissible except her complaint that she had been ravished. The details of the transaction, the name of the party accused, the place where it is said to have occurred, the time of the alleged offense, cannot be proven by a repetition of the words of the prosecutrix." Frost v. State, 100 Miss. 798.

We might, at great length, set out in this brief the various pronouncements of this court upon this particular subject. We are content, however, to rest this case upon the very recent decision of this court in the case of Garner v. The State, 83 So. ; Brown v. State, 78 Miss. 637, 29 So. 519, 84 Am. St. Rep. 614. It appears from this record that due objection was made at every point to all of this testimony, but these objections were in vain.

We submit on the whole record the evidence improperly received in this case by the court, even if taken with its inherent infirmities, is far from satisfactory, but if this were not true the conflict in all of the testimony, the failure of the state to produce the brother of the prosecutrix, who was the only living witness who could corroborate the prosecutrix, or to account for him, renders it imperative that the errors of law should work a reversal of this case. The authorities follow: Tynes v. State, 29 So. 91; Austin v. State, 48 So. 817; Frost v. State, 100 Miss. 798; Rewles v. State, 105 Miss. 406.

With this statement of what we conceive to believe the law, we submit that this case should be reversed and remanded.

W. M. Hemingway, assistant attorney-general, for the state.

The testimony in this case is admissible under the rule in McArthur v. State, 105 Miss. 398, 62 So. 417. The only defense presented is an...