Golding v. State

• Citation: 144 Miss. 298,109 So. 731
• Decision Date: 11 October 1926
• Docket Number: 25897
• Court: United States State Supreme Court of Mississippi
• Parties: GOLDING v. STATE. [*]

109 So. 731

144 Miss. 298

GOLDING v. STATE. ^[*]

No. 25897

Supreme Court of Mississippi

October 11, 1926

Division B

1. CRIMINAL LAW.

Phrase in instruction, "If you believe from the evidence beyond a reasonable doubt," held to modify all following phrases, and not merely the first, so that instruction did not assume facts.

2 RAPE.

Prosecutrix in statutory rape held sufficiently corroborated by testimony of others as to defendant's keeping company with her, his statement relative to pregnancy, and birth of child.

HON. C P. LONG, Judge.

APPEAL from circuit court of Lee county, HON. C. P. LONG, Judge.

Jack Golding was convicted of rape, and appeals. Affirmed.

Affirmed.

Geo. T and Chas. S. Mitchell, for appellant.

I. The first question involved is whether or not the court erred in granting the misleading, ambiguous and abstract instruction on the part of the state. The giving of this instruction constitutes reversible error, for it cannot be denied, when same is read, that it assumes as a fact that certain matters were proved by the state in the trial of the case.

There are several facts that must be proved by the state beyond a reasonable doubt in these cases of statutory rape: (a) The female must be unmarried; (b) the female must have been of previous chaste character; (c) the female must have been over the age of twelve years and under the age of eighteen years and younger than the male; and (d) the female must have been unmarried at the time of the act of intercourse.

This instruction positively ignores the vital issue of previous chaste character, and, in effect, tells the jury that the complaining female was, at the time of the alleged act of intercourse, a female of previous chaste character. At no place in the instruction is the jury told that they must believe that the complaining female was of previous chaste character at the time of the act of intercourse and that they must believe this fact beyond a reasonable doubt before they can lawfully convict the defendant.

These, we submit, are questions that should have been left to the jury to pass upon as they are questions of fact, some being prominent questions about which there was a sharp conflict in the testimony. This court has hold from time immemorial that whenever there is a conflict in the evidence relative to a material issue, that question is for the jury. King v. State, 23 So. 766; McCrory v. State, 25 So. 671; Saffold v. State, 26 So. 945; DeSilva v. State, 47 So. 464; Cunningham v. State, 39 So. 531. See, also, Walton v. State, 39 So. 689; Ellerbe v. State, 30 So. 57; Robinson v. State, 16 So. 201; Fore v. State, 23 So. 710. See especially 16 C. J., Criminal Law, section 2328, p. 949, section 2490, p. 1047, section 2477, p. 1036.

There was not any instruction given either for the state or for the defendant that cures the error involved here.

II. The court erred in refusing the peremptory instruction requested by appellant. The testimony of the prosecutrix had not been corroborated, as required by the statute relative to the act of sexual intercourse. Her testimony upon its face is most unreasonable. This court has construed this statute and has positively announced that the testimony of the prosecutrix as to the act of sexual intercourse must be corroborated or else a conviction cannot stand. Hollins v. State, 90 So. 630; State v. Bradford, 89 So. 767.

The court below refused the peremptory instruction on the ground that the testimony of the prosecutrix as to the act of sexual intercourse was corroborated by the testimony of Thelbert Cowley and Henry Hall. We submit that their testimony in no sense corroborated the testimony of the prosecutrix as to the act of sexual intercourse.

Prosecutrix testified that the defendant promised to marry her and if this be true, defendant might well have been worried and have made the statement attributed to him and might very properly have considered himself in a "hell of a shape" when he discovered the situation.

Upon the whole record the testimony is absolutely insufficient to uphold the verdict of guilty.

Rufus Creekmore, Special Agent, for the state.

I. The instruction. Only one instruction was requested by the state and counsel assigns the giving of this instruction as error and argues that it is erroneous in that it assumes certain facts to be true; that the proof of the existence of these facts was necessary in order for the state to make out its case; and that the jury should have been permitted to pass on these facts unhampered by instructions which assumed their existence.

Counsel argue that the instruction assumes: (1) That the prosecutrix was an unmarried female; (2) that she was of previous chaste character; (3) that she was younger than defendant; and (4) that she was over the age of twelve and under the age of eighteen years.

Counsel most ably and skillfully present to the court their argument in this respect and while it is ingenious in the extreme, yet it is a bit too refined for practical working purposes. It is only skillful grammarians who would analyze and dissect this instruction and then say the words complained of by counsel are descriptive of the person of Miss Lucy Duncan rather than descriptive of the offense. The jury clearly understood that which the court and the instruction attacked intended to convey to them.

The indictment itself was sufficient and charged the commission of the offense in apt terms, and we have here written into the instruction a direct reference to this indictment; a qualification of the instruction to the effect that the jury must believe not only that the act of intercourse took place, but that it took place "at the time and place and in the manner and form" as there charged. Not one of these cases cited is applicable to the peculiar state of affairs that arises in the case at bar.

II. Corroboration. There is ample corroboration of the fact that the defendant was guilty of this act. That the prosecutrix had sexual intercourse with someone cannot be denied because she was delivered of a child in February, 1925. The only question then is whether or not there is sufficient testimony corroborative of the testimony of the prosecutrix that the defendant is the guilty man. As to whether or not the corroboration is sufficient is a matter solely for the jury to determine. 22 R. C. L. 1224-1226.

From the very nature of the act it becomes exceedingly difficult to procure direct or positive testimony because it is an act which would naturally be secreted and hidden by both the prosecutrix and the defendant. In cases of this kind the fact of corroboration must...