Hollins v. State

Citation90 So. 630,128 Miss. 119
Decision Date20 February 1922
Docket Number21965
CourtUnited States State Supreme Court of Mississippi
PartiesHOLLINS v. STATE

1 STATUTES. Title of act fixing age of consent at eighteen years held sufficient.

Chapter 171, Laws of 1914 (Hemingway's Code, sections 1093 to 1095, inclusive), the title to which is "An Act to fix the age of consent' at eighteen years," is not unconstitutional because violative of section 71 of the Constitution, which provides, among other things, that "Every bill introduced in the legislature shall have a title, and the title ought to indicate clearly the subject-matter or matters of the proposed legislation," for such constitutional provision is merely directory, and not mandatory; and this is true whether the statute in question be a civil or criminal statute; it applies with equal force to each.

2 RAPE. Statute placing burden on defendant to show that the injured female was not of previous chaste character held not unconstitutional.

Section 2 of said statute (Laws 1914, chapter 171; Hemingway's Code, section 1094), which, among other things, provides that, on the trial of all cases under section 1 of the act it shall be presumed that the female was previously of chaste character, and the burden' shall be upon the defendant to show that she was not, is not unconstitutional, in that it declares that certain facts shall constitute a conclusive presumption of guilt, for the statute in question does not declare a conclusive presumption, but only a prima-facie presumption, which is overcome by evidence raising a reasonable doubt as to the previous chastity of the injured female.

3 RAPE. Injured female need be corroborated only as to act of intercourse.

Under said section 2 of said act (Laws 1914, chapter 171; Hemingway's Code, section 1094), which provides, among other things that the defendant shall not be convicted upon the uncorroborated testimony of the injured female, it is not required that the testimony of the injured female shall be corroborated as to each and all of the essential elements of the crime charged, but only as to the acts of sextual intercourse, that element of the crime to which the injured female is quasi particeps criminis.

HON. S F. DAVIS, Judge.

APPEAL from circuit court of Sunflower county, HON. S. F. DAVIS, Judge.

George Hollins was convicted of rape, and sentenced to the penitentiary, and he appeals. Affirmed.

Affirmed.

Quinn, Guthrie & Cooper, for appellant.

We submit that the peremptory instruction should have been given to the defendant in the trial court, and that when this question is settled this whole case is practically settled and we base our contention on the grounds as follows, to-wit: 1. The indictment alleges and the material parts thereof are as follows, to-wit: A. That the defendant did unlawfully, knowingly and feloniously have carnal knowledge of by having sexual intercourse with Katie Lou Lee. B. That Katie Lou Lee was an unmarried female person. C. That said Katie Lou Lee was of previous chaste character. D. That she was under the age of eighteen years and over the age of twelve years. E. That she was younger that George Hollins.

As to the first of these propositions we submit that she testified as prosecutrix in the case that the defendant had carnal knowledge of her as alleged, but that the first act took place in May, 1919, and on this point she was not corroborated by any other witness or witnesses because the defendant himself testifies that the first act was in August on the 2nd day thereof, and his testimony is supported by the testimony of D. M. Quinn to the effect that Katie Lou Lee in the Fall of 1919 in the trial of the case before R. J. Davis, Justice of the Peace, testified positively that the defendant had the first act of sexual intercourse with her on August 2, 1919. If the testimony which she gave in the hearing before the justice of the peace was true, as testified to by Mr. Quinn, then as a matter of fact it was impossible for her to have been of previous chaste character prior to the 2nd day of August because the record shows that she gave birth on January 30th, and it was therefore necessary that gestation should have taken place sometime during the month of May, and if her testimony which she gave before the justice of the peace was true, she is wholly uncorroborated on an essential element constituting the crime.

The statute Acts of 1914, chapter 171, makes it necessary, in order to constitute a crime, for the act to have been committed with an unmarried female person, and we consider that this element of the crime is just as necessary to be established by the state as any other material allegation in the indictment, and we have searched the record carefully and do not find a single syllable of testimony showing that Katie Lou Lee, the prosecutrix and girl named in the indictment, was unmarried at the time of the act complained of.

The next element necessary in the indictment is the question of previous chaste character. The prosecutrix herself testifies positively that the act with George Hollins was the first, but we submit that her testimony on this question is incredible because the defendant himself testified that the first act was the 2nd day of August, 1919, and according to Mr. Quinn's testimony, the prosecutrix herself, before the child was born, testified that it was about the 1st of August, and it occurs to us that the only reasonable construction to put on her testimony as to the time of the first act with George Hollins was that before the child was born she fixed at the 1st of August, and at the time of the trial of this case the child had been born, was fully developed and lived for seven or eight months and as shown by the testimony of the two doctors in the record, it could not have lived and would not have lived had conception taken place at about the 1st of August, making it a six months child.

The next element necessary is that she must have been under the age of eighteen years and over the age of twelve years, both she and her mother testified that she was not eighteen years of age and over the age of twelve years, and since the testimony for and in behalf of the defendant as to her age is rather vague and indefinite, we shall make no special contention but that this element of the crime was proven to meet the requirement of law. The law next requires that the female be younger and the indictment alleges that Katie Lou Lee was younger than George Hollins, but we submit that the record fails to establish this fact.

There is one other ground why the peremptory instruction should have been granted. Section 2 of the Act aforesaid, is in these words: "But no person shall be convicted upon the uncorroborated testimony of the injured female. It does not appear from the other statutes on rape that this part of section 2 has ever been provided by a legislative enactment, and it occurs to us that in determining as to what elements of the indictment require more than the uncorroborated testimony of the injured female, it will become necessary to investigate the authorities as to some other criminal statutes making a similar provision." We would call the court's attention to the statutes on Seduction--section 1372 of the Code of 1906, section 1108 of Hemingway's Code, where the last clause in that statute is in the following words: "But the testimony of the female seduced alone shall not be sufficient to warrant the conviction."

We would also cite the court to the case of Ferguson v. The State, 71 Miss. 805, 15 So. 66, which case holds that the woman seduced must be corroborated as to the promise of marriage and the act of sexual intercourse. 3 Lawyers' Anno. Rep. 529; 29 Ohio St. 545; 33 Mich. 117; See, also, 8 Am. St. Rep. 870, note and Baird v. Boehner, 72 Iowa 318.

The statute under consideration first appears in Laws 1888, p. 89, under the title, An act to prevent the seduction of females. Section 1298, Code 1892, is captioned: Seduction of females over the age of sixteen by fraud, and the last clause in it uses the expression, the female seduced. Section 1004 Code 1892, is captioned: Seduction of female child under sixteen. These two statutes are the necessary compliments of each other. One punishes the seduction of girls under sixteen by any means, the other seduction of females, over sixteen, by means of promises of marriage. But seduction is the substantive thing punished. People v. Millspaugh, 11 Mich. 278.

There is one other ground on which the peremptory instruction should have been granted, and that is that the act, chapter 171, of the Laws of 1914, is unconstitutional and tends to require the defendant to establish his innocence. When all criminal law proceeds on the theory that an accused is presumed to be innocent until proven to be guilty by the state, and it is always proper for the court to instruct the jury that one accused of crime is presumed to be innocent, throughout the trial and until the verdict is reached, unless the proof shows beyond all reasonable doubt that he is guilty as charged.

The statute in question and particularly section 2 thereof, is unconstitutional for two reasons: 1. The Constitution of the state of Mississippi. Section 71 requires every bill introduced into the legislature shall have a title and the title ought to indicate clearly the subject-matter or matters of the proposed legislation. We submit that the title to the act in question is not sufficient, notwithstanding the last clause of the section of the Constitution referred to, and notwithstanding the decision of this court in the case of Mayor, etc., City of Jackson v. The State, 59 So 873, which case holds that the word "ought" is a shade stronger than "should," but a shade is not to be seized to...

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12 cases
  • Jones v. State
    • United States
    • United States State Supreme Court of Mississippi
    • November 11, 1929
    ...rape at common law or any other statute on the subject. Chapter 171, Laws 1914; Hemingway's Code, vol. 1, secs. 1148-49; Hollins v. State, 128 Miss. 119, 90 So. 630; Golding v. State, 144 Miss. 208, 109 So. Joslin v. State, 129 Miss. 181, 91 So. 903; Easterling v. State, 120 Miss. 404, 82 S......
  • Trainer v. State
    • United States
    • United States State Supreme Court of Mississippi
    • April 6, 2006
    ...the statute under scrutiny is criminal or civil. We have long held that the Constitution applies to every statute. Hollins v. State, 128 Miss. 119, 90 So. 630, 631 (1922). Unable to see the distinction between the authority of criminal case law and that of civil case law when analyzing the ......
  • Bardwell v. State
    • United States
    • United States State Supreme Court of Mississippi
    • December 16, 1929
    ......S. McGuire, both of McComb, for appellant. . . Under. the express provisions of Chapter 171, Laws 1914,. Hemingway's Code, Volume 1, sec. 1148, no person shall be. convicted of statutory rape upon the uncorroborated testimony. of the injured female. . . Hollins. v. State, 128 Miss. 119, 90 So. 630; Golding v. State, 144 Miss. 208, 109 So. 731; State v. Bradford, 126 Miss. 868, 89 So. 767; Herbert Nelson v. State, 115 So. 899. . . Corroborate,. "to strengthen; to add weight or credibility to a thing. by additional and confirming facts of ......
  • Yancey v. State
    • United States
    • United States State Supreme Court of Mississippi
    • October 13, 1947
    ...v. State, 144 Miss. 298, 109 So. 731) it remains 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, su......
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