Doss v. State

• Decision Date: 17 February 1930
• Docket Number: 28539
• Citation: 126 So. 197,156 Miss. 522
• Court: Mississippi Supreme Court
• Parties: DOSS v. STATE

126 So. 197

156 Miss. 522

DOSS v. STATE

No. 28539

Supreme Court of Mississippi

February 17, 1930

APPEAL from circuit court of Jones county, Second district HON. W J. PACK, Judge.

(In Banc.) .

1 MARRIAGE. Marriage of female slightly under twelve years of age is voidable only at instance of female and not absolutely void.

A marriage ceremony performed in regular form upon a marriage license duly issued is not absolutely void, although the female may be slightly under twelve years of age. In such case the marriage is voidable at the instance of the female but not absolutely void.

2 MARRIAGE. Marriage not absolutely void can only be set aside or annulled in chancery court by parties thereto; marriage not absolutely void cannot be annulled in collateral proceeding.

Where a marriage is not absolutely void, it can only be set aside or annulled in the chancery court by the parties thereto; it cannot be annulled in a collateral proceeding. Ellis v. Ellis, 152 Miss. 836, 119 So. 304, cited.

3. WITNESSES. Wife was incompetent as witness against husband to establish rape committed on her prior to marriage; wife is competent witness to acts of violence committed on her by husband only as to offenses during time marriage relation exists (Laws 1928, chapter 35, section 1).

A wife is incompetent as a witness against her husband to establish a rape committed upon her prior to the marriage. In such case the offense is not an offense against the wife as such, and the rule of the common law making a wife a competent witness to acts of violence committed upon her by the husband relate to offenses committed by the husband against the wife during the time the marriage relation exists.

4. CRIMINAL LAW. Admitting proof of more than one offense in prosecution for rape was reversible error.

In a prosecution for rape, it is not permissible to prove a number of separate and distinct offenses. When one crime is committed in such case, it is complete within itself, and the subsequent crime does not corroborate the evidence of the first offense, and it is reversible error in such case to permit more than one offense to be proven. Collier v. State, 106 Miss. 613, 64 So. 373, cited.

HON. W. J. PACK, Judge.

APPEAL from circuit court of Jones county, Second district HON. W. J. PACK, Judge.

Alonzo Doss was convicted of rape, and he appeals. Reversed and remanded.

Judgment reversed, and cause remanded.

L. B. Melvin, of Laurel, for appellant.

A marriage not declared by the law to be void is only voidable.

A voidable marriage is good for all purposes until avoided or annulled, and cannot be attacked collaterally, but only in a direct proceeding during the lifetime of the parties.

Ellis v. Ellis, 119 So. 304; 30 C. J., page 1104, par. 930; Bostick v. State, 55 So. 260; Dobbins v. State, 205 P. 1056; 38 C. J., page 1304, par. 70; 38 C. J., page 1348, par. 120; Hawkins v. Hawkins, 38 So. 640; Morah v. Whittington, 40 So. 326; Antoine v. Antoine, 96 So. 305; Beck v. Beck, 63 So. 444.

Husband and wife may be introduced by each other as witnesses, in all cases, civil or criminal, and shall be competent witnesses in their own behalf, as against each other, in all controversies between them.

Sec. 1576, Hemingway's Code of 1917, sec. 1916, Code 1906.

If case is wholly criminal wife cannot testify against husband.

McQueen v. State, 104 So. 168; Spencer v. Bryant, 106 So. 6.

A wife is incompetent as a witness against her husband to establish rape committed on her prior to marriage.

Collier v. Collier, 64 So. 373; Kolb v. State, 83 So. 164; Arthur v. State, 113. So. 199; McLain v. State, 116 So. 533.

Forrest B. Jackson, Assistant Attorney-General, for appellee.

In a criminal prosecution involving personal injury to the wife, or husband, such as assault and battery, and the crime of rape, each can be introduced against the other.

Turner v. State, 60 Miss. 351, 45 Am. Rep. 412; McRae v. State, 104 Miss. 861, 61 So. 977; McQueen v. State, 139 Miss. 457, 104 So. 168; 1 Blackstone's Commentaries, 443; 4 Wigmore on Evidence (2 Ed.), sec. 2239; Wharton Criminal Evidence (9 Ed.), p. 326, sec. 393; 2 Bishop, New Criminal Procedure, p. 981, secs. 1151, 1153.

Where defendant on cross-examination brought out the same testimony he cannot complain that the state introduced such testimony.

2 R. C. L., sec. 96; Bacon v. Bacon, 76 Miss. 458, 24 So. 968.

Where evidence forms a part of a chain of facts so intimately connected that the whole must be heard in order to interpret its several parts, it is competent.

Keel v. State, 133 Miss. 166, 97 So. 521; King v. State, 66 Miss. 52, 6 So. 189; 16 C. J. 572, et seq.; King v. State, 123 Miss. 542, 86 So. 340.

OPINION

Ethridge, P. J.

Alonzo Doss was indicted, tried, and convicted for rape, and sentenced to death. The indictment charges the rape to be upon one Bessie Lee Powe, a female child under the age of twelve years.

It appears that in June, 1929, the appellant went to Mobile, Alabama, and took lodgings in the house of a negro woman named Ella Powe, spending a couple of days and nights there, and representing to her that he was the brother of Ella Powe's brother's wife, who lived in Laurel, Miss., and when he was about to return from Mobile he asked Ella Powe to let the girl, Bessie Lee Powe, go with him to visit her uncle who lived in Laurel, to which Ella Powe, the mother assented. She testified that the appellant and the girl went towards the depot, and that, not hearing from them within a reasonable time, she called her brother at Laurel and learned that the child and Doss had never appeared there. She thereupon went to Laurel, met Doss, the appellant on the street there, and accosted him about her child, and she testified that he stated if she would get in the car he would carry her to where the child was. She got in the car, and they started in a westerly direction, and, when some distance out of Laurel, the appellant began to abuse and threaten her, and she got scared and jumped out of the car and returned to Laurel, where she gave information to the officers. She further testified that the appellant would not state where the child was.

Bessie Lee Powe was introduced as a witness over the objection of the appellant, his ground of objection being that she was his wife; and it appears from the evidence that a license was procured and a marriage ceremony performed by a minister of the Gospel. The court overruled appellant's objection, and the witness testified to several separate acts prior to the alleged marriage, each of which constituted a rape. The appellant objected also to the introduction of more than one of these acts, and moved to require the state to elect upon what act it would proceed, which motion the court overruled, to which exception was taken.

It appears from the evidence that, when the appellant returned to the plantation upon which he was employed, he stated to the owner of the plantation that Bessie Lee Powe was not his child, he having previously represented this to the planter and several other persons, that Bessie Lee Powe was his child, and that he desired to marry her. The wife of this planter talked to Bessie Lee Powe, and testified that Bessie stated she was eighteen years of age, and that she was willing to marry appellant. She further testified that she and her husband were present at the marriage, which was duly and regularly performed. The minister who performed the marriage ceremony also testified that said ceremony was regularly performed, and that the questions usually asked in such cases were actually asked and were written down by the white lady who was present at the marriage.

It further appears that after Ella Powe, the mother of the girl, returned to Laurel and reported to the officers, they began a search for her child, and finally came to the house where the appellant was living with the child, knocked at the door, and, receiving no answer, broke the door open and entered, there finding appellant who came towards them stating, "You can't do anything with me (using an oath), because I have married." The child was tied upon the bed, and was in a bad condition physically. She was removed to the city hospital and there examined by a physician, who testified that she was in a lacerated condition and injured. The child was placed in a hospital for treatment.

The testimony of the officers was objected to on the ground that they had no legal warrant to either search the house or make the arrest, which objection was, by the court, overruled. We do not pass upon this assignment, because it does not appear that the officers were seeking to arrest the appellant.

The question as to the competency of the witness of Bessie Lee Powe, on the ground that she was the wife of the appellant, and as to whether, as such, she was competent to testify, depends upon the answers to two questions: First, Was the marriage ceremony duly performed upon a license issued therefor void, or merely voidable? and, second, Was the wife competent to testify to an offense committed against her person prior to her marriage?

The court below proceeded upon the idea that both of these questions could be answered in the affirmative, and that the witness was competent for both reasons.

The girl testified that the appellant threatened her with death if she did not yield to him, and if she reported to any one the acts done, and that she was afraid of him, and did not report the acts done because of fear. She also testified that the appellant told her if she did not consent to the marriage he would kill her, and she did not know anything about marriage, and was not willing thereto.

The chancery court alone has jurisdiction to determine the validity of a marriage,...