Kirkland v. State
| Citation | 371 So.2d 402 |
| Decision Date | 23 May 1979 |
| Docket Number | No. 51163,51163 |
| Parties | James KIRKLAND v. STATE of Mississippi. |
| Court | Mississippi Supreme Court |
Stanfield, Holderfield, Brown & Hall, Percy Stanfield, Jr., John R. Poole, Jackson, for appellant.
A. F. Summer, Atty. Gen., by Robert D. Findley, Sp. Asst. Atty. Gen., Jackson, for appellee.
Before ROBERTSON, SUGG and LEE, JJ.
Appellant, James Kirkland, was indicted in the Circuit Court of Simpson County, Mississippi, for the crime of rape of his three-year-old daughter, Erin, on December 10, 1976. A Motion for Change of Venue was sustained, and the case was transferred to the Circuit Court of Smith County. After a full trial, a guilty verdict was returned by the jury and Kirkland was sentenced to life imprisonment in the Mississippi State Penitentiary.
Appellant has assigned as error:
1. The trial court erred in overruling appellant's motion for a directed verdict, and in refusing appellant's requested instruction for a finding of "Not Guilty", because
A. The State failed to prove the corpus delicti;
B. The evidence was insufficient to sustain a conviction.
2. The trial court erred in allowing hearsay testimony.
3. The trial court refused appellant compulsory process to secure the attendance of a witness.
Kirkland picked up his minor daughter from her mother, from whom he was divorced. He took her with him to his place of work and worked until 2:30 p. m., when he left with his daughter and proceeded to get very drunk.
Homer Pierce testified that he saw appellant lying on the ground outside of Booth's Store and drove him and his daughter home about 3:30 p. m. Pierce stated that when Kirkland tried to get out of the pickup truck with the little girl in his arms, he fell on top of her and she was crying when Pierce picked her up and put her on the porch. Kirkland crawled up the steps to the porch.
About 6:30 p. m. Kirkland phoned his sister, Geraldine Creason, in Braxton, and asked her to come to his house because Erin was hurt. Mrs. Creason testified that she could tell that her brother had been drinking, that she didn't believe him, and did not go. At 9:30 that night, he called again, asked her if she was coming and again told her that the baby was hurt. Not believing him, she didn't go.
About 8 o'clock the next morning, Margaret Garner, another sister, called Mrs. Creason and told her to meet her at their mother's home where Kirkland lived. When they arrived they found that the baby had been hurt and they, together with Kirkland, took the child to the Voice of Calvary Clinic in Mendenhall. Dr. Dennis Adams hastily examined Erin and, finding that she had bruises around her left eye and on her chest, and a laceration and tear between her vagina and rectum, and suspecting possible sexual molestation, he called the University Hospital in Jackson and sent Erin there for a more thorough examination.
Dr. Carole Mangrem, a pediatric's resident at the University Medical Center, testified that she examined Erin around noon, Saturday, December 11th, that she found some bruising on the left side of her face, a tear in the vaginal area extending toward the rectum, and "a lot of subcutaneous or under the skin bleeding and bruising in that area." Because the little girl was sore, she didn't make an internal examination.
Dr. Mangrem further testified:
Q And from your examination could you make any determination as to what other things could have caused this injury?
A Well, you know, there are a couple of possibilities that would come to mind. You know, first, that there was attempted sexual molestation, and the other possibility would be a straddle injury.
Q All right. Now when you talked to the defendant and when you talked to the other people there, did they make any indication that she had received a straddle injury anywhere?
A No, sir. We asked specifically if anyone had seen her fall at any time and no one knew that she had.
Q All right. And the nature of this particular straddle injury that you're indicating if it could be that would that be that just a fall on the ground could cause that?
A Not likely. It would usually be on something such as a board or rail.
Dr. Mangrem stated that the little girl was friendly to her father and to others around her, that she made no physical complaints and that when asked "who had hurt her" she said "Mike".
On cross-examination, Dr. Mangrem testified:
Q And you have seen straddle-stride or straddle-split injuries in young children three and four years old, have you not?
A Yes, sir.
Q And they are very much the same as this laceration that you saw in this child, are they not?
A Yes, sir.
Q That's why you're telling this Jury and this Court that in your opinion you cannot determine whether there was a straddle-stride injury or an attempted rape, can you?
A No, sir.
Q And it's just as reasonably probable that this child suffered a straddle-stride injury as it is reasonably probable that the child was a victim of an attempted rape, is that not correct, Doctor?
A From my examination.
Erin's mother, Peggy (Kirkland) Turnage, arrived Saturday afternoon and was with her Saturday, Sunday and Monday. Over objection, she testified that late Saturday afternoon, when questioning Erin about what happened to her, Erin said:
A She just told me well, she told me at first that James had hurt her. She said, "Daddy" and then she said,
Q All right. And do you know what James she was talking about?
A I just assumed when she said "Daddy" it was
Only the witness was there when the little girl made that statement.
Over objection, Deputy Sheriff Norris Matthews of Simpson County testified that on Monday afternoon, December 13th, (after he had seen Erin on Sunday and she had said nothing), when asked "Who made your bottom sore?", Erin said, "Daddy." Only her mother was present. Sheriff Lloyd Jones of Simpson County testified, over objection, that when he saw Erin on Monday afternoon in the presence of her mother:
A We asked her who did this to her and she said her daddy did.
BY MR. CRAWFORD:
Q All right, sir. And what did she have reference to? Did what?
A To her face and her bottom.
Erin slept on her father's bed Friday night, December 10th, and spots of her blood were found on the bed sheet as well as blood on her panties, which were also found on the bed. No blood of the defendant was found on the bed sheet, nor was any of Erin's blood found on defendant's clothes.
The Latin words...
To continue reading
Request your trial
-
Goodson v. State
...Hall v. State, 539 So.2d 1338, 1342-43 (Miss.1989); Cummins v. State, 515 So.2d 869, 873-75 (Miss.1987).12 See Kirkland v. State, 371 So.2d 402, 404 (Miss.1979). Much mythology surrounds this subject. In the past horseback riding and gym classes were often blamed. Today tampon use is the co......
-
Gill v. State, 56123
...This rule is in keeping with the cases cited by appellant, Redding v. State, 211 Miss. 855, 53 So.2d 7 (1951) and Kirkland v. State, 371 So.2d 402 (Miss.1979). However, this rule had been modified to allow this type testimony. The evolution of the rule can be found in Cunningham v. State, 4......