Frost v. State

• Citation: 100 Miss. 796,57 So. 221
• Court: United States State Supreme Court of Mississippi
• Decision Date: 15 January 1912
• Parties: JIM FROST v. STATE

57 So. 221

100 Miss. 796

JIM FROST v. STATE

Supreme Court of Mississippi

January 15, 1912

October 1911

APPEAL from the circuit court of Wayne county, HON. JOHN L. BUCKLEY Judge.

Jim Frost was convicted of rape and appeals.

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

Reversed and remanded.

E. W Stewart, for appellant.

Nothing is better settled by this court than the proposition that in a case of this kind the state may show prosecutrix complained soon after the assault was committed upon her, but it must not be permitted to give the particulars of her complaint or that she charged the defendant with the wrong.

This is a wise and beneficent rule, but it is absolutely nullified by the action of the trial court.

The court and lawyers on both sides were kept busy telling these negro witnesses, all of whom were exceedingly swift, not to mention defendant's name in relating what they claimed was told them by the prosecutrix. But what if the good of all this when a raft of witnesses are permitted to testify as to the condition of the ground shown them and to testify "I seen the prints of the pints of his shoes (meaning defendant's) in the sand."

Every juror understood that these witnesses were testifying that they had seen the place where defendant committed the assault. This was giving particulars with a vengeance. It would hardly be possible to find a method so surely calculated to bring about the conviction of defendant as allowing this testimony.

It was just as much a violation of the rule mentioned above as though the witnesses had been permitted to relate all that was told them by the prosecutrix and for this reason I beg to refer to the following authorities: Ashford v State, 81 Miss. 414; Anderson v. State, 82 Miss. 785; Dickey v. State, 86 Miss. 525, and Jeffries v. State, 89 Miss. 643. Also, Rice on Crim. Evidence, sec. 521; Bishop on Crim. Proc. (3rd Ed.), sec. 963; 23 Am. & Eng. Ency. Law 874; 1st Greenl. Ev. (15th Ed.), sec. 103 note 6 (d). 3 Greenl. Ev. (15th Ed.), sec. 213, nad note; 12 Cyc. 429, 3. This court has held that "when incompetent evidence of great import is deliberately introduced and it cannot be said with confidence that no other conclusion than that of guilt could have been reached on the legal evidence "even," that the jury was subsequently instructed to disregard the incompetent testimony, would not cure the error," Chism's case, 70 Miss. 742. In the instant case "Incompetent evidence of great import" was not only admitted, but most "deliberately" so. So far from being ruled out and the jury instructed not to consider it, the contrary was, in effect, done, as the court overruling the constant objections of defendant's counsel must necessarily have impressed the idea upon the minds of the jury that this evidence was most important, and it certainly was, most damaging. This evidence should not have been permitted to go to the jury for another reason, viz.:

It charges the defendant with declarations made by the prosecutrix of which he had neither knowledge nor opportunity of denying. This renders it such palpable error that I do not think it necessary to refer to authorities.

Carl Fox, assistant attorney-general, for appellee.

By far the most serious assignment is that the court erred in...