Fields v. State, 47801

Decision Date25 March 1974
Docket NumberNo. 47801,47801
Citation293 So.2d 430
PartiesTheodoria FIELDS v. STATE of Mississippi.
CourtMississippi Supreme Court

Firnist J. Alexander, Jr., Jackson, Constance Iona Slaughter, Forest, for appellant.

A. F. Summer, Atty. Gen. by John C. Underwood, Jr., and Karen Gilfoy, Sp. Asst. Attys. Gen., Jackson, for appellee.

BROOM, Justice:

Life imprisonment was the sentence given appellant upon his conviction for the crime of forcible rape. Trial was in the Circuit Court of Lowndes County, Mississippi. We affirm.

The prosecutrix, an MSCW student, and two other young MSCW students (all were females), on October 23, 1972 at about 7:30 p.m., had just finished their clean-up chores at a camp house of Mr. Ben Owen in a wooded area of Lowndes County. They intended later to use the house for a social outing of the Lancers, a social club of which they were members. The prosecutrix and one of the young ladies were in the car waiting for the third. Just as they were about to leave the camp, appellant and another young man, one of whom fired a gun near the car, appeared on the scene. The young men pointed their guns at the two ladies in the car, ordered them out of the car and inside the camp where the females begged to be left alone. Guns were again pointed at the three females inside the camp where another young male joined the group.

I.

The first proposition argued is that error resulted from the refusal of the trial court to grant appellant a directed verdict and a peremptory instruction. It is said that the state did not prove penetration by competent evidence; that it was proven only by leading questions, if at all. We find no merit in this contention. The state's case as to the issue of penetration was bolstered when defendant's counsel asked the prosecutrix on cross-examination if it was her testimony that she had 'had intercourse.' Obviously the question referred to the episode between appellant and the prosecutrix whose answer was 'yes.' She had already testified on direct examination that 'he raped me.' It is true that the precise and direct testimony of the victim in establishing penetration was in response to questions that were somewhat suggestive or leading. On this basis complaint is made by appellant that reversible error was committed by the court.

The answer complained of as to penetration was given after the court had first sustained objections to leading questions about this ingredient of rape. It is not always reversible error to ask a direct or leading question about penetration. The leading questions propounded in this case (to which objections were sustained) would not be reversible error if answers had been permitted in view of the circumstances. Lang v. State, 230 Miss. 147, 87 So.2d 265 (1956). Lang also held that penetration need not be proven by any particular form of words, and may be established by circumstantial evidence. As noted, the state's proof of penetration was greatly enhanced by defense counsel on cross-examination of the prosecutrix. Additionally there was abundant circumstantial evidence here which together with the cross-examination was sufficient to take the case to the jury on the issue of penetration.

Appellant then argued that the proof was insufficient to show lack of consent on the part of the prosecutrix. He says that the proof does not adequately establish a threat by appellant against the prosecutrix or that she physically resisted the appellant. The rule is that physical force on the part of the assailant, or physical resistance on the part of the victim, is not necessary if the proof shows beyond a reasonable doubt that the female surrendered because of fear arising out of a reasonable apprehension of great bodily harm. Johnson v. State, 223 Miss. 56, 76 So.2d 841 (1955). If the female fails to resist the attack of her assailant because she is put in such apprehension and fear, the act of the assailant may be rape under the law. McGee v. State, 40 So.2d 160 (Miss.1949), certiorari denied, 338 U.S. 805, 70 S.Ct. 77, 94 L.Ed. 487, rehearing den., 339 U.S. 958, 70 S.Ct. 977, 94 L.Ed. 1369 (1950); Milton v. State, 142 Miss. 364, 107 So. 423 (1926).

In the case before us the jury heard competent evidence that the prosecutrix was in fear of great bodily harm and that such fear motivated her not to physically resist the attack of her assailant, the appellant. The record is replete with testimony on her part that 'I was scared to death.' She said that appellant had a gun and was 'going to kill me.' In describing the rape which occurred inside a room of the cabin, her testimony was that 'I heard somebody outside popping a gun.' She was asked why she did not struggle and her answer was 'He had a gun, I wasn't going to fight with him.' She 'begged him not to shoot (her),' and to 'leave me alone.' The prosecutrix further testified that one of the three boys had stated that 'they had come out that night to murder someone and we would do just as well as anybody else would.'

Testimony concerning threats and weapons as given by the prosecutrix was adequately corroborated by her two female companions. While the record does show that the prosecutrix did not see any gun at the precise time of the rape, she had (according to the evidence) ample reason to believe that the gun was readily available to her assailant at all times. Believable evidence was to the effect that she reasonably concluded that she would be killed or seriously harmed by the appellant if she physically resisted his demands upon her.

Appellant's assertion that the lower court committed error in overruling his motion for a directed verdict is unavailing even if it were properly before us. It is not properly before us because he waived his motion for a directed verdict by presenting evidence in his own behalf. Hankins v. State, Miss., 288 So.2d 866, decided on January 21, 1974; Smith v. State,245 So.2d 583 (Miss.1971). As to his request for a peremptory instruction, the rule is that when all the evidence on behalf of the state is taken as true, together with all sound or reasonable inferences that may be drawn therefrom, if there is enough evidence to support a verdict of conviction, the peremptory instruction should be denied. Cochran v. State, 278 So.2d 451 (Miss.1973). Such was the evidence in the case at bar.

II.

Next, the defense contends that the court committed reversible error by refusing to admit into evidence a key to the Ben Owen camp house. One aspect of the theory of appellant's case was to infer that one of the prosecutrix's companions had arranged for the girls to rendezvous with the appellant and his two friends at the camp, and had furnished the key to the appellant. Appellant, acting within his constitutional rights, did not take the witness stand. The only testimony developed at the trial indicating that the appellant had any advance contact with the key, or prosecutrix's companion who was said to have furnished appellant the key, was hearsay testimony given by the appellant's sister and mother. His mother was permitted to state that she discussed the matter of the key with...

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  • Woodward v. State, DP-81
    • United States
    • Mississippi Supreme Court
    • October 5, 1988
    ...apprehension of great bodily harm. Clemons v. State, 460 So.2d 835 (Miss.1984); Davis v. State, 406 So.2d 795 (Miss.1981); Fields v. State, 293 So.2d 430 (Miss.1974).... Id. at 909. It is this Court's opinion that the evidence presented was sufficient to convince a rational factfinder of Wo......
  • State v. Rusk
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    ...466 So.2d at 909 (Miss.1985). See Clemons v. State, 460 So.2d 835 (Miss.1984); Davis v. State, 406 So.2d 795 (Miss.1981); Fields v. State, 293 So.2d 430 (Miss.1974). In the present case, the victim stated that the defendant had a dark object in his hand, which she thought was a knife. She t......
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    ...through fear under a reasonable apprehension of great bodily harm); See also Rush v. State, 301 So.2d 297 (Miss.1974); Fields v. State, 293 So.2d 430 (Miss.1974); Johnson v. State, 223 Miss. 56, 76 So.2d 841 ¶ 27. We find that Madere did not meet his burden of proof beyond a reasonable doub......
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