Frost v. State

• Decision Date: 11 January 1909
• Citation: 94 Miss. 104,47 So. 898
• Court: Mississippi Supreme Court
• Parties: JAMES FROST v. STATE OF MISSISSIPPI

47 So. 898

94 Miss. 104

JAMES FROST v. STATE OF MISSISSIPPI

Supreme Court of Mississippi

January 11, 1909

October 1908

FROM the circuit court of Wayne county, HON. W. H. HARDY, Judge.

Frost appellant, a negro, was indicted and tried for an assault upon one Lottie Whigham a female under the age of ten years with intent to rape, was convicted, sentenced to the penitentiary for ten years, and appealed to the supreme court.

The opinion sufficiently states the facts. Code 1906, § 1359, under which the indictment was drawn, provides that a person convicted of assault with intent to ravish a female of previous chaste character shall be punished by imprisonment for life or for such lesser time as may be fixed by the jury. The indictment however failed to charge the previously chaste character of the female assaulted.

Reversed and remanded.

E. W. Stewart and D. M. Taylor, for appellant.

The court below erred in allowing the state, over appellant's objection, to offer in evidence the testimony of the grandmother of the prosecutrix. This testimony consisted merely of a recital of the supposed particulars of the alleged assault as made to the grandmother by the prosecutrix a short while after the alleged occurrence. The grandmother had no personal knowledge of the particulars. She merely narrated on the stand what her granddaughter had told her. The appellant was not present when the prosecutrix communicated the alleged facts to her grandmother, hence the testimony of the grandmother was incompetent. Ashford v. State, 81 Miss. 414, 33 So. 174; Anderson v. State, 82 Miss. 784, 35 So. 202; Jeffries v. State, 89 Miss. 643, 42 So. 801; Dickey v. State, 86 Miss. 525, 38 So. 776.

The indictment is defective for the reason that it fails to charge that the prosecutrix, at the time of the alleged assault, was of previously chaste character. Code 1906, § 1359. It is true that the indictment avers that the female was, at the time of assault, under the age of ten years, and it may be held, as an inference, that she could not be unchaste at such a tender age. But this should not change the rule that there should be strict compliance with the terms and provisions of the statute law in the framing of indictments based thereon.

George Butler, assistant attorney-general, for appellee.

It must be admitted that the testimony of the grandmother of the prosecutrix was incompetent. There was however only a general objection made to its introduction. Whether or not the admission of such testimony should work a reversal of the judgment, is respectfully submitted to this court.

While it is true that the indictment is drawn under Code 1906, § 1359, and fails to allege that the female was of previously chaste character, yet her chastity was clearly proved on the trial.

OPINION

FLETCHER, J.

Upon a prosecution for...