Garner v. State

• Decision Date: 10 November 1919
• Docket Number: 20900
• Citation: 120 Miss. 744,83 So. 83
• Court: Mississippi Supreme Court
• Parties: GARNER v. STATE

83 So. 83

120 Miss. 744

GARNER v. STATE

No. 20900

Supreme Court of Mississippi

November 10, 1919

1. CRIMINAL LAW. Res gesta. Statement after offense.

On the trial of a prosecution for rape, it was not harmless error to allow the mother of the injured girl to testify that the girl in her presence had charged the defendant with the crime which charge he then and there denied.

2. CRIMINAL LAW. Argument of district attorney. Appeal to race prejudices.

In a prosecution for rape it was error for the court over objection, to allow the district attorney in his argument to the jury to go out of the record and appeal to racial prejudices and southern sentiment upon the crime of rape.

APPEAL from the circuit court of Jackson county, HON. D. M. GRAHAM Judge.

Callie Garner was convicted of rape and appeals.

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

Reversed and remanded

Mize &amp Mize, for appellant.

We will discuss the first five assignments of error together, which discussion continues the following legal proposition, to wit Was it competent to permit Sarah Reed to charge Callie Garner as being the author of the alleged crime at a time when Callie Garner vigorously denied it?

If there is one proposition that the law of evidence settles, without any contrary opinion or minority authority, it is when a crime has been committed and the defendant is charged with it and then and there denies it that the said evidence is not admissible. This has been settled in two leading cases in the state of Mississippi.

In Brown v. The State, 78 Miss. 637, is the case where Jonah Brown, with two others, was indicted for the murder of Sid Harden, and two officers, Seal and Duckworth, who had arrested the defendant, carried him to the house where Harden was mortally wounded and asked him if he knew Brown, when Harden accused Brown of shooting him for nothing, Brown thereupon denied the accusation. This testimony was admitted by the lower court, and the supreme court, by Justice TERRAL, reversed the case for the admission of this testimony, and used, at page 639, the following language: "If A, when in B's presence and hearing, makes statements which B listens to in silence, interposing no objections, A's statements may be put in evidence against B whenever B's silence is of such a nature as to lead to the inference of assent." (citing authority) but there is no assent to the charge made by Harden; on the contrary, the defendant denied the charge as soon as made, "just as in the instant case. This case has been re-affirmed in the case of Johnson v. The State, 90 Miss. 317, where the defendant was charged with participating in a crime, but denied it, which evidence was by the lower court admitted, and on account of its admission this court reversed it.

In the case of Mumford v. The State, 70 Fla. 424, 70 So. 399, was a similar case where the defendant was charged with a crime, but denied it. The supreme court of Florida for the admission of such evidence in reversing it said it knew of no authority to the contrary.

Also see 24 L. R. A. 235, Slso Corpus Juris., p. 634, lays down the rule citing many authorities to the same effect and none to the contrary. Also 2 Wigmore sec. 1072, top of page 1261, in a masterly discussion, lays down the same rule. Also Chamberlain on Evidence, sec. 1401, lays down the same rule with no authority to the contrary. Also People 1. Tashara, 66 P. 798; People v. Ayhens, 117 P. 789; People v. Turner, 82 P. 397; 3 Encyclopedia of Evidence, bottom pp. 299-300, where authorities are collated in note and none to the contrary.

This evidence was vigorously objected to where the witness was asked the following questions: "Question; When did you first report to your mother in the presence of Callie Garner" (Objected to. Objection overruled) "Answer: That night when she came in, he was in the other room but he heard it." Appellant moved to exclude the answer of the witness, but it was overruled. Thereupon the witness was permitted to go on to say that her mother called Callie Garner and asked him about it, and that her mother replied that she was going to take the prosecutrix to the doctor; thereupon the appellant said if the doctor said he had done it, he was lying.

The question that led up to this answer was objected to, and when the answer came out, the defendant moved to exclude it, and the court remarked: "I will exclude that part of the answer as to what her mother said," which did not exclude that Callie Garner was charged with the crime and denied it; but after the court used the following expression "I will exclude that part of the answer as to what her mother said," the following question was asked: "What statement did you make to your mother in his presence?" which was objected to and overruled. The witness stated that her mother called him, and he came as far as the middle door, and she asked him, whereupon the witness was interrupted, and the following question was asked: "Question; What did you say at that time, did you tell your mother what had happened?" "Answered: Mother asked me if he done it and I told her he had done it." Appellant moved to exclude this answer, which was overruled.

It was error to permit the district attorney to use the following language, to wit: This fiend and brute (pointing to defendant at the bar of the court) is guilty of raping this little girl. Oh, it is nothing now a days, and not uncommon thing, to pick up a newspaper and see where some brute has committed this crime;" (objected to by defendant's counsel; the court remained silent). Continuing the district attorney said "You see it South, North and East, where a brute of his race has committed this fiendish crime. Are you going to turn him loose on the public?"

This is about as flagrant a violation of the province of the district attorney as any record that has ever been before this court. The learned district attorney, without any provication at all from the appellant, whose duty it is to see a fair and impartial trial between the defendant and the state, representing the defendant and his rights as much as the state and its rights, so far forgot himself as to transgress his province as to make it the imperative duty of the court to reverse this case. Courts cannot be too careful in trying cases of this nature. While it is permissible for the district attorney to use invective of the Edmond Burke Type on Warren Hastings, yet such invective as this has limits and bounds as all things terrestrial. No language could have been more forcible to secure conviction in Mississippi than this language, taking into consideration the the times and temper of the jurisdiction wherein this defendant was tried. A heated state campaign where the race question was prominently before the people, and a number of crimes having been committed by the negro race in various sections of the United States, and more particularly in the South and in Mississippi; and this court cannot shut its eyes to this situation, as it is such common knowledge that it is almost judicial knowledge; and for the district attorney to retrospect from the newspapers over the country, or the press of the country, wherever it might be, South, North, or East, it finds where a brute of his race had committed this fiendish crime, and then in a powerful appeal, to wit: stating "are you going to turn him loose on the public," could not be without telling effect.

The district attorney ought never to refer to the defendant charged with a capital crime as a brute, and then follow this up by telling them that it is nothing now a days uncommon to pick up a news paper and see where some brute has committed the crime, and then appealing to them by saying that if they would look South North or East...