Gillis v. State
| Decision Date | 11 February 1929 |
| Docket Number | 27803 |
| Court | Mississippi Supreme Court |
| Parties | GILLIS v. STATE. [*] |
RAPE. Evidence held insufficient to support conviction for statutory rape (Hemingway's Code 1927, sections 1148, 1149).
In prosecution for statutory rape, in violation of Hemingway's Code 1927, sections 1148, 1149, evidence held insufficient to support conviction.
APPEAL from circuit court of Sunflower county, HON. S. F. DAVIS, Judge.
Charlie Gillis was convicted of rape, and he appeals. Reversed, and defendant discharged.
Reversed, and appellant discharged.
S. D. Neill, for appellant.
B. B. Allen and J. A. Lauderdale, Assistant Attorney-General, for the state.
Argued orally by S.D. Neill, for appellant, and J. A. Lauderdale, for the state.
Upon an indictment therefor, Gillis, the appellant, was tried upon the charge of statutory rape of one Sallie Wablington. From a conviction and sentence of thirty days imprisonment in the county jail and a fine of three hundred dollars, he prosecutes this appeal.
It is unnecessary to detail the facts of the case, save to say that the prosecutrix testified that the crime occurred on the night of August 6, 1927, when she and the defendant were taking an automobile ride. She was a schoolgirl not quite fifteen years of age, and he was a young man of some twenty-one or twenty-two years. A baby was born to her on the 16th day of May, 1928, and this case was tried on the 1st day of October, 1928.
The statutes controlling this prosecution are sections 1148 and 1149, Hemingway's 1927 Code (Laws 1914, chapter 171, sections 1 and 2).
The appellant requested a peremptory instruction, which was refused by the court, and this action is assigned as error on appeal to this court, such assignment being based upon that part of section 1149 which provides that no person shall be convicted upon the uncorroborated testimony of the injured female.
The act of sexual intercourse was by mutual consent, the prosecutrix yielding to the persuasion of the appellant; and this record does not disclose any corroboration of the injured female as to the act of sexual intercourse between her and the appellant.
The attorney-general urges upon the court that the prosecutrix, Miss Wablington, is corroborated in the following particulars: First, when in travail, she told her father that the appellant was the father of her child; second, that she is further corroborated by her father's testimony, in that he swore that the appellant was the only boy she was ever out with alone; and, third, her testimony was corroborated by profert of the child. We do not think any one of these statements corroborates the injured female on the main element of the crime.
First. As to the declaration when she was in travail, we seriously doubt if this record discloses any such declaration; but, conceding that it does, and assuming that such evidence is competent in a statutory rape case, still it would not be corroborative of the injured female as to the gist of the offense, but would only be a self-serving declaration, unsworn to, made in the time of her great distress--and certainly it does not add anything to the same sworn statement made solemnly in open court. We do not express an opinion as to the competency of this evidence.
Second. The father of the prosecutrix testified that these parties went off alone; but that fact is not corroborative of her statement that on that trip sexual intercourse was participated in by them. No such presumption can be indulged.
Third. As to the profert of the baby, four and one-half months old in open court, if it be conceded that this was proper evidence--which we do not decide--certainly a baby of that tender age could not and would not have developed such characteristics as to make such testimony dependable and reliable and sufficient upon which to base the judgment of a court, where the liberty of a citizen is involved. If such evidence should be permitted on the trial of any case of this character, we must apply common sense and human experience to it, and say that it is wholly insufficient upon which to base a conviction for crime. The child was too immature and too young; and...
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Lewis v. State
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Yancey v. State
...true that corroboration must be of the secret part or gist of the crime. Hollins v. State, 128 Miss. 119, 90 So. 630; Gillis v. State, 152 Miss. 551, 120 So. 455. opportunity creating a possibility is not enough of itself. Gillis v. State, supra; Grogan v. State, 151 Miss. 652, 118 So. 627.......
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Howard v. State, 53733
...as follows, "corroboration must be, not merely of incidental details, but of the commission of the prohibited act." Gillis v. State, 152 Miss. 551, 120 So. 455 (1929), involved a conviction of statutory rape upon facts similar to this case. In Gillis, the prosecutrix, when in travail, told ......