Dickey v. State

• Citation: 86 Miss. 525,38 So. 776
• Court: United States State Supreme Court of Mississippi
• Decision Date: 12 June 1905
• Parties: HAMMOND DICKEY v. STATE OF MISSISSIPPI

38 So. 776

86 Miss. 525

HAMMOND DICKEY v. STATE OF MISSISSIPPI

Supreme Court of Mississippi

June 12, 1905

FROM the circuit court of, first district, Coahoma county, HON SAMUEL C. COOK, Judge.

Hammond Dickey, the appellant, a white man, was indicted, tried, and convicted of rape upon Catherine Fortson, a negro girl, and sentenced to the penitentiary for life. The offense was committed and indictment found in Quitman county, but the venue was changed, on defendant's application, and the trial had in Coahoma county, first district. From the conviction and sentence defendant appealed to the supreme court.

On the trial, the prosecutrix, Catherine Fortson, testified that she lived near the defendant, and went to the house of defendant to get some pears, and defendant went with her to the orchard to get the pears, and they both came back to the house, and while she was at the house, talking to the wife of defendant he left, and after a while she started home through a cotton field, and, while she was going through the cotton field defendant caught her, jerked her down, and had forcible intercourse with her. Three witnesses testified that when Catherine got home she was bleeding considerably, and said when asked what was the matter: "Mr. Dickey hurt me." This was objected to by defendant. Defendant testified that the girl went to his house and asked for some pears, and he went with her to the orchard to get the pears and while they were in the orchard he had sexual intercourse with her there with her consent, and denied that he went to the cotton field at all, as stated by her. The prosecutrix and her parents testified, over defendant's objection, that she was ten years old. A letter written by defendant to Dr. Henderson, the physician who attended prosecutrix, was introduced in evidence by the state over the defendant's objection. This letter was written by defendant while in jail, and handed to the deputy sheriff to be mailed, it being addressed to Dr. Henderson. The letter contained a statement of facts which defendant requested Dr. Henderson to swear to, and an offer to pay him $ 200 if he would do so.

Defendant made a motion for a new trial, setting up, among other things, that one of the jurors was separated from the jury during the trial, and that two bailiffs entered the jury room while the jury were deliberating on the case and remained in the room a large part of the time after the jury had heard the evidence and received the instructions of the court. The evidence on the motion showed that one juror had gone a short distance across the courtroom, to a water cooler, to get a drink of water. The judge stated that this was observed by the court, but that the juror immediately returned, and did not talk with, nor was he spoken to by, any one. It was shown that one bailiff entered the jury room for the purpose of speaking to one of the jurors about his son, who was sick, the bailiff stating that he was only in there a few minutes, told the juror that his son was sick, and the juror wrote an order to a physician to go to see his son; that the jury did not discuss the case in his presence, and nothing was said about the case at all by him or by any of the jury while he was in there. It was also shown that another bailiff went into the jury room. This bailiff stated that he was called in there by some of the jurors to get them a broom to sweep up some water that had been spilled on the floor, and that nothing was said by him or any of the jurors in his presence about the case. It was also shown that the jury stayed in the jury room one night until about eleven o'clock, and then went into the main courtroom and made down their beds and slept in there the remainder of the night. There were a number of books in the room, but none of the jurors read any book, and the case was not discussed at all in the presence of the bailiffs by the jury, nor did the bailiffs discuss the case in the presence of the jury or any of them.

Affirmed.

Denton & Leathers, for appellant.

The appellant is not guilty, and the jury should have so found, in view of all the competent testimony in the case. We know that juries are entrusted with the sole responsibility of passing upon the facts; but in cases of rape, where it is "so easy to accuse and so hard to defend," the verdict of the jury will be scrutinized with care, and a conviction will be reversed unless plainly supported by the evidence, as in the cases of Monroe v. State, 71 Miss. 196; Green v. State, 67 Miss. 356; Hollis v. State, 9 So. 67; Harvey v. State, 26 So. 931; Tymes v. State, 29 So. 91.

Three witnesses for the state were permitted to testify, over the objections of appellant, that the prosecutrix not only made complaint of her injury shortly after the alleged assault upon her, but also that she then charged appellant with the wrong; and the case should be reversed on this ground alone. Anderson v. State, 82 Miss. 785; Ashford v. State, 81 Miss. 414; Rice on Crim. Ev., sec. 521, and cases there cited; 2 Bishop on Crim. Proc. (3d ed.), sec. 963; 23 Am. & Eng. Ency. Law, 874. That the prosecutrix merely said, "Mr. Dickey hurt me," and did not use the word "rape" or other words equivalent, does not alter the injury done appellant by her statement, because it is clear that she meant that he had raped her. Neither is the case altered by the fact that appellant afterwards admitted that he had sexual intercourse with her, and even that he had hurt her, because he has never admitted the rape; and it is clear that, in her statement to her father and mother, she was charging him with the rape, and that the jury so understood it.

The court erred in permitting witnesses for the state to testify that, about the time this crime is alleged to have been committed, they heard a noise, which "sounded with a hollering like a child," but they did not know what the noise was or where it came from. Baker v. State, 82 Miss. 84. It is true that the court afterwards excluded a part of this testimony, but, in accordance with a recent decision of this court, this will not cure the error. It had already had its effect. Flowers v. State, 85 Miss. 591 (s.c., 37 So. 814).

The admission in evidence of the letter written by appellant to Dr. Henderson is reversible error. It was not admissible for the purpose of discrediting the testimony of Dr. Henderson, because his name is on the back of the indictment as a witness for the state, and he had not been introduced at that time as a witness for appellant. The case of Baker v. State, 82 Miss. 84, is exactly in point. The case is not altered by the fact that appellant did afterwards introduce Dr. Henderson as his witness.

The letter was not an attempt to bribe Dr. Henderson, but was an appeal to him to come to court and testify to the facts as appellant believed them to exist; but if the letter did show an attempt to bribe, such attempt constituted a separate and distinct offense, for which appellant might have been indicted and convicted under sec. 1246 of the code; and this furnishes another undeniable ground for reversal of this case. Dabney v. State, 82 Miss. 252.

The district attorney should not have been permitted to introduce evidence as to the age of the prosecutrix and to attempt to contradict the testimony of appellant's witnesses thereto. The indictment alleges that the prosecutrix was over ten years old at the time of the alleged assault upon her, and her age was therefore immaterial. Mobley v. State, 46 Miss. 501. The stress laid upon the extreme youthfulness of the prosecutrix undoubtedly very largely influenced the verdict of the jury.

Proof that there was a general and public search of the surrounding country for appellant could have been made by the state for no other purpose than to show the highly excited and prejudiced state of public feeling against appellant which existed at that time. We admit that it is always proper to show flight of the accused, or any act of his which would tend reasonably to show guilt, but it is clearly inadmissible to establish his guilt by the act of any other person or persons, however large may be their number. Madden v. State, 65 Miss. 176.

It was error for the bailiffs of the jury to be in the room and converse with jurors, and for outsiders to communicate with them, as shown by the record. Section 729 of the code expressly forbids officers to be in the same room with, or to converse with, the jury. The presence of officers or other persons in the jury room will be presumed to be prejudicial, and is of itself ground for a new trial. In Hare v. State, 4 How. (Miss.), 187, where an outsider was left in charge of the jury for a short while by the officer, Sharkey, C. J., said: "If the verdict be given under circumstances which might conduce to an improper influence, or the natural tendency of it might be to produce bias or corruption, it cannot then be said to be above suspicion; and if it be not, it must fall short of that perfection which the law requires and which, under a more guarded administration, it is capable of producing. It is not necessary that any attempt should be made to bias the minds of the jurors or that any pernicious influence should be exerted. The door to tampering is to be closed. This is the only security; for if it be left open, it may be predicated with certainty that the evil consequences will fall somewhere."

It has been frequently held elsewhere that the presence of officers and outsiders in a jury room will be presumed to be prejudicial. People v. Knapp, 42 Mich. 267 (36 Am St. Rep., 438); State v. Snider, 20 Kan. 306; Gandy v. State, 24 Neb. 716, citing Rickard v. State, 74 Ind. 275; McLary v. State, 75 Ind. 261; Cole v. Swab, 4 G. Greeb (Iowa), 32; State v. Cartwright, 20...