Johnson v. State

• Court: Mississippi Supreme Court
• Writing for the Court: ETHRIDGE, J.
• Citation: Johnson v. State, 101 So. 685, 136 Miss. 775 (Miss. 1924)
• Decision Date: 10 November 1924
• Docket Number: 24309
• Parties: JOHNSON v. STATE. [*]

101 So. 685

136 Miss. 775

JOHNSON v. STATE. ^[*]

No. 24309

Supreme Court of Mississippi

November 10, 1924

Division B

RAPE. Instruction that burden was on defendant, after chastity of prosecutrix attacked, to prove her unchaste held erroneous. In a prosecution for violation of the age of consent law (chapter 171, Laws of 1914 [Hemingway's Code, section 1093]), where the character of the female has been impeached by evidence as to prior chastity, it is error to instruct the jury that the burden as to previously chaste character is upon the defendant. All that is necessary under the statute is for the defendant to tender sufficient evidence to raise a reasonable doubt as to the previously chaste character, and then the burden as to the whole case is upon the prosecution.

HON. E J. SIMMONS, Judge.

APPEAL from circuit court of Pike county, HON. E. J. SIMMONS, Judge.

Le Roy Johnson was convicted of statutory rape, and he appeals. Reversed and remanded.

Judgment reversed, and case remanded.

J. A Wiltshire, for appellant.

There was reversible error in granting the three instructions for the state. These instructions do not lay down the correct rule in this case. Each instruction, and all of them together absolutely ignore the defense in the case and this is reversible error. Cumberland v. State, 110 Miss. 521; Barnes v. State, 118 Miss. 621.

We understand the statute as going into court with the prosecutrix, presuming that she was of prima-facie chaste character; that is, until some evidence is introduced thereon, the law presumes her chaste until some affirmative proof is introduced to the contrary, and when we introduce the abundance of unimpeached direct evidence of prior acts of intercourse, the state would have to meet the burden and prove her chaste beyond all reasonable doubt, and an instruction which does not announce this principle does not announce the law of Mississippi, because to go further than a prima-facie presumption would be to go beyond the law and would render the statute unconstitutional, taking away from defendant, charged with crime, his presumption of innocence. Hollins v. State, 128 Miss. 119, 90 So. 630.

As stated in Haley v. State, 106 Miss. 368: "It is not incumbent upon the defendant to satisfy the jury that he had been threatened and had good and sufficient reasons to apprehend a serious attack." The instruction as written amounts to that. If a defendant can raise a reasonable doubt in the minds of the jury, he is entitled to an acquittal, and he is never required to prove himself innocent. In Murphy v. State, 89 Miss. 827, 42 So. 877, this court held that "an instruction for the state announcing the direct contrary of the law to be the law is not cured by one for the defendant merely stating the law correctly.

Juries are prone to attach but little weight to negro evidence at best. This instruction leaves them where they could easily say, in the jury room: "This defendant admits having intercourse with the girl, and the judge has instructed us that the law presumes her to be of previous chaste character and the defendant must show that she was not (under the amended instruction for the defendant), by evidence that more than preponderates. We have some doubt as to whether, from all the evidence she was previously chaste, still since the boy admits the intercourse, and the judge instructs us that the law presumes her chaste, there is nothing to do but find the defendant guilty." This of course would be very prejudicial to the defendant, when the law imposes no such presumption where there is positive evidence pro and con.

Harry M. Bryan, Assistant Attorney-General, for the state.

At the March term, 1924, of the Circuit Court of the Second District of Pike County, appellant was indicted upon the charge of violating the age of consent law. After having carefully read the record we are convinced that the state's case was amply and overwhelmingly made out. Section 1093, Hemingway's Code, defines the offense for the commission of which appellant was convicted.

Counsel for appellant in his brief raised only two questions: the first is as to the correctness of the three instructions granted on behalf of the state. The first two follow the statute closely, using practically its exact language. The third instruction granted for the state was drawn with Section 1094 particularly in mind. Further than to state to the court that these instructions track the statutes, we feel that no argument is necessary, but it will be especially noted that the jury was charged in the first two, that it was necessary for them to find as a fact, that the prosecutrix was of previously chaste character before they could convict. The third instruction applies the second statute above quoted and was written in the language thereof. Counsel argues inferentially the unconstitutionality of Section 1094 of Hemingway's Code. This court in the Hollins case, 128 Miss. 119, 90 So. 630, put this question at rest.

If the evidence in such cases raises a reasonable doubt as to the chastity of the female, the defendant is entitled to acquittal. This language appears in instruction No. 2, given for the defendant, and is shot through the other instructions given for him as well as those given for the state, so that if the court committed any error at all in modifying instruction No. 2 for the state, (if such was so modified) it was harmless error and the jury was properly instructed as to the burden of the defendant in overcoming the prima-facie status of chastity of the prosecutrix.

Appellant says that he showed by proof the unchastity of the prosecutrix and that it was not contradicted. We simply call the court's attention to the testimony of the prosecutrix who denied this most vigorously. The jury heard the evidence and decided this issue against the defendant. . . .

OPINION

ETHRIDGE, J.

The appellant, Le Roy Johnson, was indicted and convicted of violating the age of consent law by having carnal knowledge of Mary Alice Martin, an unmarried female person of previously chaste character above the age of twelve years and under the age of eighteen years, said Johnson being a male person older than the said Mary Alice Martin, etc.

The testimony for the state showed that the mother of the girl Mary Alice Martin, on the day of the alleged offense, left her daughter at the home of Le Roy Johnson, who was living with his parents, and that the mother of Le Roy Johnson and the mother of Mary Alice Martin went away together to a store. While they were gone, the witnesses for the state testified that the appellant took the said Mary Alice...