Collier v. State

• Decision Date: 16 February 1914
• Docket Number: 17010
• Citation: 64 So. 373,106 Miss. 613
• Court: Mississippi Supreme Court
• Parties: P. H. COLLIER v. STATE

64 So. 373

106 Miss. 613

P. H. COLLIER v. STATE

No. 17010

Supreme Court of Mississippi

February 16, 1914

APPEAL from the circuit court of Sunflower county, HON. MONROE MCCLURG, Judge.

P. H Collier was convicted of rape and appeals.

The facts are fully stated in the opinion of the court.

Reversed and remanded.

M. Ney Williams, attorney for appellant.

Frank Johnston, assistant attorney-general, for the state.

OPINION

REED J.

Appellant was convicted of rape committed on his daughter Ethel, a child about thirteen years old. He was sentenced to the penitentiary for life; the jury having disagreed as to his punishment. It is shown by the testimony of Ethel that the rape was committed on her in a boat during high water, out in the woods, where appellant had gone with her to look for a horse. She did not tell of the act until perhaps a year afterwards. She said that she did not tell sooner because her father had threatened to kill the "whole family," if what he had done to her should become known. She testified that her father, after the first rape, had carried her into the woods a number of times, she said some six or seven, and assaulted her, and that she finally told her mother, because he had informed her that he was going to again carry her to the woods, and that she "would rather be dead than treated that way." Appellant testified in his defense, and denied that he had ever had sexual intercourse with his daughter.

In one of his assignments of error the appellant contends the court erred "in overruling the motion of the defendant for a copy of the veniremen served and a copy of the indictment to be served upon him or his counsel for at least one full day before the case should be tried; that being a right given by the statute to defendant."

Section 1481 of the Code of 1906 provides that "any person indicted for a capital crime shall, if demanded by him, by motion in writing, before the completion of the drawing of the special venire, have a copy of the indictment and a list of the special venire summoned for his trial, delivered to him or his counsel at least one entire day before said trial." It is shown by the testimony of one of the counsel for appellant that the court's attention was not called to the motion in proper time. We quote from his testimony taken on the hearing of the motion for a new trial as follows: "Q. Did you call the court's attention either directly or indirectly, to the motion for a copy of the special venire and indictment? A. I did not call the court's attention to it. Q. And you did not call counsel's attention to it? A. I did not. Q And you did not call the district attorney's nor the county attorney's attention to it? A. No, sir. Q. You did not call my attention to it as employed counsel representing the state? A. I called nobody's attention to it. I filed it as the law requires." Later, when counsel presented to the court an order overruling the motion, the court declined to give it, stating that such action was "because the court's attention was never called to the motion, and the court never made any order on it at all at any time. The court had no knowledge of it until the motion was made on yesterday to quash the special venire facias, because a copy of the indictment and a list of the special venire had not been served."

We think the court was entirely correct. It was the duty of the counsel for appellant to present his motion to the court for action before the completion of the drawing of the special venire. Under the statute the copy of the indictment and list shall be given defendant upon his demand. We do not see how a court can act upon a demand, unless it is brought to the court's attention.

Another assignment of error by appellant is that the court erred "in permitting testimony of the witness Ethel Collier, over the objection of defendant, as to subsequent crimes of rape committed upon her by defendant; the state having proved the first crime, each act being a separate crime, and the indictment only charging one offense."

It will be seen that the prosecutrix testified to acts of intercourse, which amounted to rape, by appellant subsequent to the offense alleged in the indictment. Was this testimony admissible?

We find the law touching the proof of other acts upon a trial on a charge of rape clearly stated in 33 Cyc., p. 1483, as follows: "As a general rule proof of other acts than that charged is inadmissible, unless they are part of the res gestae, or come within some other exception to the rule including evidence of other offenses. In prosecutions for statutory rape on a female under the age of consent, or of a woman imbecile, it is generally held that proof of acts prior to that alleged in the indictment is admissible, unless they are too remote in point of time. Subsequent acts are not admissible in some jurisdictions, unless they are part of the res gestae; but in other jurisdictions it is held that proof of subsequent acts is admissible by way of corroboration or explanation of the act on which the indictment is based, unless such subsequent acts are too remote. In some states it has been held that, on an indictment for rape by force or threats, it is competent to prove an attempt at some prior time, not too distant, to commit the same offense or the actual commission thereof; but it is generally held that, in prosecutions for rape by force, proof of other acts committed on the prosecutrix or others is not admissible."

Formerly it was held in Texas that acts of sexual...