Johnson v. State, 39537

• Decision Date: 17 January 1955
• Docket Number: No. 39537,39537
• Citation: 223 Miss. 56,76 So.2d 841
• Parties: Walter JOHNSON v. STATE of Mississippi.
• Court: Mississippi Supreme Court

Page 841

76 So.2d 841

223 Miss. 56

Walter JOHNSON v. STATE of Mississippi.

No. 39537.

Supreme Court of Mississippi.

Jan. 17, 1955.

R. G. Wigginton, Gulfport, for appellant.

J. P. Coleman, Atty. Gen., Wm. E. Cresswell, Asst. Atty. Gen., for appellee.

ETHRIDGE, Justice.

Walter Johnson, the appellant, was convicted in the Circuit Court of Harrison County of the crime of rape, and was sentenced to suffer the death penalty. Code of 1942, Sec. 2358. The crime occurred around 10:30 P.M. on the night of March 30, 1954, in the City of Biloxi, Harrison County, Mississippi. It is undisputed that appellant committed the offense. The prosecutrix, a young white married woman, testified that appellant had a knife and threatened the life of herself and her sister, with whom she was going home, unless she submitted to his demands.

She unequivocally identified Johnson as the culprit, and she had ample opportunity to observe him on the occasion in question. Her sister also definitely identified appellant. Dr. W. A. Tisdale, who examined the prosecutrix shortly after the rape occurred, testified concerning the condition of her body after the rape, and his examination fully confirmed her statements. Appellant, a Negro, was a soldier stationed at Keesler Field. Corporal Zike arrested him when he returned to Gate Number One around 11:05 P.M. that night, and took a knife from him. Appellant made an oral confession to Sergeants Etheridge and Hill of the Air Force Police, in which he admitted the crime and the use of the knife which was taken from him as the instrument of coercion. Assistant Chief of Police Walter Williams and Captain Charlie Comeaux, of the Biloxi Police Department, testified that appellant signed two separate written confessions of the crime, one dated March 30, 1954, and another April 7, 1954; and that these confessions were wholly voluntary and made without any coercion or promise of leniency. They admitted appellant's premeditated, criminal rape of the prosecutrix. Appellant did not testify, either on the preliminary hearing concerning the confessions or on the merits. He offered no evidence and made no issue as to the admissibility of the confessions. Since there is no dispute as to the facts, we will not undertake to outline the repulsive details of appellant's crime.

Appellant argues that the verdict of the jury is against the great weight of the evidence. However, this record contains no dispute of the State's testimony and Johnson's two confessions that he committed the crime. Apparently the argument on this point is the claim that the prosecutrix did not offer sufficient resistance to the commission of the crime. But the record shows that she and her sister, who was present at the time, were rendered incapable of physical resistance because of the fact that appellant had with him a large knife with which he threatened to kill both the prosecutrix and her sister if they resisted or cried out. Where the act is accomplished after the female yields through fear caused by immediate threats of great bodily injury, there is compulsive force and the act is rape. Actual physical force or actual physical resistance is not required where the female yields through fear under a reasonable apprehension of great bodily harm. Here the threats were made before the act through the exhibition of, and threat to use, a deadly weapon, a knife. Actual physical resistance by the female is not required in such circumstances. 75 C.J.S., Rpae, Sec. 15; Milton v. State, 1926, 142 Miss. 364, 107 So. 423; McGee v. State, Miss.1949, 40 So.2d 160, 171.

The trial court committed no error in admitting into evidence the two confessions of appellant. It is undisputed that appellant was fully advised as to his rights and that he made the statements voluntarily, without coercion of any kind. Appellant did not testify upon the preliminary examination as to their admissibility and offered no evidence that such statements were not voluntary. There is no evidence that he was overawed, frightened or intimidated by the officers, as appellant asserts.

On the voir dire examination, the juror Scarborough had been accepted as a juror by the State. He had testified that he had no conscientious scruples against the imposition of capital punishment. While being questioned by the defendant's attorney, Scarborough changed his prior testimony, and said that he had a strong conviction against the imposition of capital punishment. The court then interrogated him and was advised by him that he did not believe in capital punishment. Thereupon the trial judge excused Scarborough as a juror, and stated that he wanted the jury to understand that the court was taking no part in the decision on the facts, that whether appellant was guilty, and, if so, the type punishment he should receive, were questions for the jury, but that since Scarborough did not believe in capital punishment, that was a disqualification in a capital case. Appellant says that the effect of the court's action was to advise the jury that their readiness to inflict capital punishment was their most important qualification, and that this action prejudiced the jury against appellant.

In cases where the death penalty can be imposed by a jury, it is the duty of the judge to inquire of the jurors whether they have conscientious convictions against inflicting the death penalty. Phenizee v. State, 1938, 180 Miss. 746, 178 So. 579. A somewhat similar case to the instant one on this question is Lewis v. State, Miss. 1847, 9 Smedes and M. 115. The court was performing its duty in this respect, and committed no error in acting as it did. We find no prejudice to appellant resulting from this incident.

Appellant made no point either before or during the trial that he was insane and incapable of distinguishing between right and wrong as to the particular acts with which he was charged, or at the time of the trial. He filed no suggestion of insanity nor any other pleading raising that issue before or during the trial. He did not testify in his own defense, and the only witness he offered was Captain Robert W. McGill, the commanding officer of the Student Squadron of which appellant was a member. He testified that appellant came to the squadron on January 1, 1954, and that he is 17 years of age. (18 now.) He knew nothing about the alleged crime. Appellant's counsel asked McGill his opinion of appellant's mental age, and what peculiarities he displayed. Appellant's attorney stated that he was not pleading insanity. After that statement the trial court sustained an objection to those questions. If appellant had pleaded insanity, they would have been proper. In fact, the district attorney on the trial conceded that. However, since in the trial on the merits appellant's counsel advised the court that he was not pleading insanity, the court was not in error in sustaining that objection to the stated questions to McGill. Appellant asked for and obtained no instructions on the question of sanity, and did not submit that issue to the jury.

Appellant filed a motion for a new trial, which set up two new points not previously raised by him: (1) Newly discovered evidence which would show that appellant was insane at the time of the crime, during the trial, and subsequent thereto, and that Dr. H. L. Deabler, a clinical psychologist, had examined appellant and made this diagnosis; (2) that no Negroes were summoned to serve on the panel from which the grand jury and petit jury were drawn.

On the hearing of this motion for a new trial, appellant offered, to support his contention of insanity, Dr. H. L. Deabler. He...