Dunmore v. State

• Decision Date: 17 July 1905
• Citation: 86 Miss. 788,39 So. 69
• Court: Mississippi Supreme Court
• Parties: JAMES DUNMORE ET AL. v. STATE OF MISSISSIPPI

39 So. 69

86 Miss. 788

JAMES DUNMORE ET AL. v. STATE OF MISSISSIPPI

Supreme Court of Mississippi

July 17, 1905

FROM the circuit court of Hancock county, HON. WILLIAM T McDONALD, Judge.

James Dunmore and William Wallace, the appellants, were indicted tried, and convicted of rape, and appealed to the supreme court.

On the trial Amelia King, the prosecutrix, testified that she was going along the path, carrying clothes, when defendants came to her and caught her and threw her down, and Dunmore held her down while Wallace had sexual intercourse with her; that she resisted all she could, and hallooed, and two persons came up, and the boys (defendants) ran away. W. J. Gex testified for the state as follows: "The day they (defendants) were tried I was on my way from Pearlington, and when I got on the boat I was attracted to Mr. Ballentine, who had a pistol strapped around him. I walked to him, and saw him sitting in front of these two boys (defendants), who were handcuffed. I said, 'What is the matter?' and he said: 'Ask them; they will tell you.' I said 'What are you bringing them to jail for?' and he said, 'It is no secret; they pleaded guilty;' and one of them said, 'They have got us up for doing it to a little girl,' and said, 'The boy with the short pants on got it from a little colored girl;' and the boy in the short pants said, 'I am no more guilty than you are;' and the boy in the long pants said, 'I did not get any for I held her while you got it;' and the boy in the short pants said, 'I didn't.' The big boy said the little one did it, and the small one said, 'You would have got some if some one had not come along.' The officer was sitting directly in front of them. He had a pistol strapped around him, and the boys were handcuffed."

Affirmed.

Mayben & Parker, and D. B. Seal, for appellants.

Where there are two reasonable hypotheses arising from, and supported by, the evidence in a criminal case--one of guilt and one of innocence--it is the duty of the jury to adopt the one Consistent with innocence, although the other be more probable. Thompson v. State, 83 Miss. 287.

The alleged confession made to Gex and Ballentine, on the boat from Pearlington to English Lookout, is of the tainted variety that has been condemned from time immemorial, such as has never had judicial sanction anywhere. Do we state the rule correctly when we say "a confession is inadmissible when obtained by any hope or fear, however slight or remote?" And this court will note that even had this confession been admissible, it was not a confession of guilt, as to the commission of the crime of rape, but a confession of having had sexual intercourse with Amelia King. But this alleged confession would have been inadmissible if the charge had been for unlawful cohabitation.

A confession, extracted by hope inspired by inducements held out by the officer who had the prisoner in charge, is not free and voluntary under any authority. Mackmasters v State, 82 Miss....