Harris v. State
| Decision Date | 05 February 1968 |
| Docket Number | No. 44470,44470 |
| Citation | 206 So.2d 829 |
| Parties | Robert Earl HARRIS v. STATE of Mississippi. |
| Court | Mississippi Supreme Court |
L. Lackey, Rowe, Jr., Jackson, Howard McDonnell, Biloxi, for appellant.
Joe T. Patterson, Atty. Gen., by Guy N. Rogers, Asst. Atty. Gen., Jackson, for appellee.
In the Circuit Court of Monroe County appellant was convicted under section 2412.5 Mississippi Code 1942 Annotated (Supp.1966). This section was adopted by the Legislature in 1958 and appears as chapter 281 of Mississippi Laws 1958. The appellant was sentenced to serve three years in the state penitentiary with one and one-half years suspended pending good behavior.
Errors are assigned (1) in the refusal to dismiss the indictment because appellant was alleged to have been denied a preliminary hearing, (2) in the refusal to exclude certain testimony relating to the identification of appellant by Mrs. Laura Watson, (3) in the refusal to hold that the above section as applied was unconstitutional and (4) in not granting a new trial inasmuch as the verdict was contrary to the great weight of evidence. Error was also assigned in the overruling of appellant's motion to quash the venire because of alleged systematic exclusion of negroes and because of the exclusion by state law of women from the jury.
Mr. L. D. Watson, a resident of Hamilton, Mississippi, In Monroe County, was the father of two children, one of whom was a fifteen-year-old girl. On April 17, 1966, about 8:00 p.m., the family was at home watching television. The fifteen-year-old daughter left the room to take a bath, and Mrs. Watson went to the kitchen to clean up. The house is approximately 200 feet from a road on the front and has another road on one side. The bathtub is on the west side of the bathroom but visible from the window, which is about five feet above ground level. While taking her bath, the daughter heard her mother scream.
When Mrs. Watson had gone to the kitchen, she had turned on the exterior lights to feed the cat and dog on the outside, had stepped out and had observed a man standing on a flowerpot looking in the bathroom window, fifteen or twenty feet distant from her. He was looking through the window with his head tilted to one side. Upon her screaming upon seeing him, he had run. She was able to recognize the person and identified him as the appellant. After the incident, she first inspected the inside of the bathroom and believed the curtain was drawn. To be sure, she then went outside and stood on the flowerpot. She was able to see into the bathroom because the curtain was slightly open; but in order to do so, she had to tilt her head. She positively identified the appellant in the courtroom as the one who had been standing on the flowerpot until she screamed.
Mrs. Watson said that the man had on khaki pants with a belt and a short-sleeved sport shirt of a light color tucked in. The appellant's defense was an alibi supported by two witnesses.
First the appellant contends that it was error to refuse to dismiss the indictment because the appellant had no preliminary hearing. The record shows that the appellant waived such a hearing. The record of preliminary hearing was not introduced before the jury, nor was any alleged statement or plea made by the appellant before the magistrate at such hearing introduced into evidence. There is no evidence of any harm or prejudice against the appellant by the failure to have a preliminary hearing, if there were such failure. It would have had no effect upon the trial in this cause. Harper v. State, 251 Miss. 699, 171 So.2d 129 (1965); In re Woodruff's Petition,253 Miss. 827, 179 So.2d 268 (1965).
When Mrs. Watson was on the stand she positively identified the appellant as the man she had seen standing on the flowerpot at the window of the bathroom on the night of April 17. On cross-examination, the attorneys for the defendant requested that the jury retire while they questioned Mrs. Watson. While the jury was out, she testified that the next time she saw the appellant was on the 18th. Mrs. Watson stated that on the next day after the incident the appellant was brought to her house by the deputy sheriff. She did not know whether he came voluntarily or not. He was standing there in front of her house when she saw him. Because he was accompanied by the deputy the next day for identification by Mrs. Watson, appellant moved the court to exclude all testimony relating to the identification of the defendant. This motion was overruled by the court. The jury thereafter returned and the trial proceeded. Appellant argues that Mrs. Watson's identification of the appellant before the jury should be excluded because the bringing of the appellant to Mrs. Watson's house the next day afforded opportunity and chance for confusion. We do not think that such an appearance would utterly destroy her testimony. If it would have any effect at all, it would only go to the weight to be given to her testimony.
As to the contention that the statute in question is unconstitutional as applied, we cannot agree. This statute reads as follows:
Any male person who enters upon real property whether the original entry is legal or not, and thereafter prys or peeps through a window or other opening in a dwelling or other building structure for the lewd, licentious and indecent purpose of spying upon the occupants thereof, commonly called a 'Peeping Tom,' shall be guilty of a felonious trespass; and upon conviction, shall be imprisoned in the state penitentiary not more than five years.
This Court has held that the statute is constitutional. Brown v. State, 244 Miss. 78, 140 So.2d 565 (1962); Riley v. State, 254 Miss. 86, 180 So.2d 321 (1965). The statute provides that act must be done with 'lewd, licentious and indecent purpose.' The jury was fully instructed on this feature of the case and determined it against the appellant. The following facts are sufficient to support a finding that the act was committed with a lewd, licentious and...
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