Lee v. State

• Decision Date: 06 November 1961
• Docket Number: No. 41954,41954
• Citation: 134 So.2d 145,242 Miss. 97
• Parties: Ellic LEE, Alias Ellis Lee v. STATE of Mississippi.
• Court: Mississippi Supreme Court

Page 145

134 So.2d 145

242 Miss. 97

Ellic LEE, Alias Ellis Lee v. STATE of Mississippi.

No. 41954.

Supreme Court of Mississippi.

Nov. 6, 1961.

Robert T. Riser, Dennis Baker, D. R. Johnson, Batesville, for appellant.

Joe T. Patterson, Atty. Gen., by G. Garland Lyell, Jr., Asst. Atty. Gen., for appellee.

KYLE, Justice.

The appellant, Ellic Lee, also referred to in the record as 'Ellis Lee', was indicted by the grand jury in the Circuit Court of the Second Judicial District of Panola County, at the October 1960 Term of the Court, for the crime of rape, alleged to have been committed on June 6, 1960. Upon motion of the appellant a change of venue was granted, and the case was tried in the Circuit Court of Coahoma County during the January 1961 Term of the Court. The appellant was convicted and sentenced by the court to suffer death by lethal gas on February 28, 1961, in the State Penitentiary at Parchman. The appellant's attorneys filed a motion for a new trial, which was overruled. From the judgment of conviction and sentence and the order overruling his motion for a new trial, the appellant has prosecuted this appeal. The record shows that two other persons were involved in the forcible entry of the home of the prosecutrix and the rape of the prosecutrix by the appellant.

The appellant's attorneys have assigned and argued three points as grounds for reversal of the judgment of the lower court:

(1) That the court erred in overruling the appellant's motion for a directed verdict at the conclusion of the State's evidence for the reason that the State failed to prove beyond a reasonable doubt and to a moral certainty the guilt of the appellant;

(2) That the court erred in permitting testimony to be given by the prosecutrix, who testified as a witness for the State, relating to her having been raped by one Howard Cook, one of the three persons who had invaded her home, prior to any testimony as to the alleged rape of the prosecutrix by the appellant; and

(3) That the court erred in permitting testimony to be given by Daniel Pope, a witness for the State, concerning the identification of certain articles of personal property found in the home of the prosecutrix approximately two hours after the alleged crime had been committed.

The record shows that the prosecutrix was a young white married woman who, at the time the alleged crime was committed, was living with her husband and three small children in a ranch type dwelling house situated on the north side of State Highway No. 6 about 12 miles west of the Town of Batesville. The dwelling house was a substantially built house consisting of three bedrooms, a kitchen, utility room, small hall, and a bathroom. There were two large chicken houses and a Negro church on the east side of house and a lake north of the Negro church. The prosecutrix testified that her husband was engaged in the business of operating a gasoline service station and garage on State Highway No. 6, about one-half mile east of the Town of Batesville; that he left home each morning about 6:30, and usually returned to the home after dark; and that their nearest neighbor lived about a quarter of a mile from them.

The prosecutrix testified that she was at home with her children at the time the alleged crime was committed, about 3:00 o'clock in the afternoon of June 6, 1960. She had driven her automobile to a nearby country store just before the noon hour, and when she returned to her home she had left the car, which was a 1956 Ford, parked in the driveway facing north just a little way from the house. She stated that after she and the children had eaten their midday meal she watched two 30-minute television programs and then went into the garden for the purpose of hoeing two rows of corn and a row of beans. She was dressed in her underwear, a blouse and Bermuda shorts. While she was in the garden hoeing the corn, she heard the voice of a man telling her to turn around and squat down. She looked up and saw a Negro man squatted down between two rows with a gun pointed at her and an open knife in his mouth. The Negro told her that he did not want anything except some clothes and food, and he asked her whether that was her car in the driveway. She told him that it was her car. The prosecutrix stated that she did not know the person was talking to her, but she later learned that his name was Foreman. She stated that Foreman called to another Negro, who was standing at the end of the garden with a rifle in his hand, and told him to go in the house and see if there was anybody there. She learned later that his name was Cook. She stated that she told Foreman there was no one in the house except her children, and Foreman said, 'Well, we will just find out.' Cook then went into the house and came back to the edge of the garden and said everything was all right. The two oldest children came out of the house with him. Foreman then picked up a clod of dirt and threw it over toward the barn, and a third Negro appeared on the scene. The prosecutrix stated that she later learned that his name was Lee, and she then identified the defendant at the bar as the person referred to as Lee.

The prosecutrix stated that she and the children and the three Negroes then went into the house, and Cook stood guard over her and the children in the kitchen, while Foreman and Lee went through the other rooms of the house searching for clothes and guns. Cook had a gun in his hand and told the prosecutrix to sit down in a chair. She and the children remained in the kitchen with Cook guarding them about five minutes. The prosecutrix stated that Foreman then came into the kitchen and made her go into the bedroom. The children were put in a closet just at the foot of the bed. Foreman told her that he would have to tie her up, and he took a pair of her husband's pants and tore them into strips and tied her feet to the foot of the bed and her hands behind her. Foreman then went into another room and got a pillow case and put it over her head and tied it under her chin. He told her that he hated to do that, but he had to tie the pillow case over her head, so that she could not see which way they were going to leave. The prosecutrix stated that she had ample opportunity to hear the voices of the three men, and that she was able to identify their voices.

The prosecutrix stated that, after Foreman had tied her up Cook came to the bed and turned her over and tried to have sexual intercourse with her. But Foreman came back in and caught Cook and made him get up; and Foreman told Cook that 'he would get the gas chamber for anything like that, that that wasn't what they were there for.' Lee was in the room at that time and had a rifle. Foreman then said that he was going out to get the car. He had already asked the prosecutrix while they were in the garden whether the keys were in the car. The Negroes had been in her house about 30 minutes at that time.

The prosecutrix was asked how she knew Foreman left the room after he put the pillow case over her head. Her answer was, that he was the first one that came out, and she knew Foreman's voice; that she had heard him talk; and he was standing right beside the bed when he said that he was going out to get the car. She stated that she heard the door slam when Foreman went out, and after she heard the door slam she heard the voices of Cook and Lee in the room. Cook told Lee to watch out the window, and Cook then raped her. The appellant's attorney at this time objected to further evidence concerning this alleged attack, on the ground that Lee was the defendant on trial, and that they were not trying Cook. The objection was overruled. The prosecutrix stated that Cook then asked Lee if he was ready. Lee said he was, and Lee then raped her. Cook raped her again. She then heard the car go around the house, and Foreman came back into the bedroom. The three Negroes went into the kitchen to get the food and left soon thereafter.

The prosecutrix stated that she resisted as much as she could when she was assaulted by Cook and Lee. She realized that her life and the lives of her children were constantly threatened by the armed assailants, and she remained where she was ten or fifteen minutes after the three men left the house. She then freed herself, put on some clothes, and let the children out of the closet; and she and the children ran to the highway to get help. One car passed, and then a pickup truck came along and she stopped it and told the driver what had happened. The driver of the pickup truck was a Mr. Grimes; and he and a highway patrolman went back to her house with her to get her automobile tag receipt. The patrolman then called her husband, who came out in a few minutes and took her to the hospital at Batesville, where she was examined and treated by Dr. Ben Moore. She remained in the hospital five or six days.

The prosecutrix was asked what color and type of pants each of the Negroes had on. She stated that Foreman had on a pair of blue dress pants; that Cook had on khaki pants, but changed into a pair of green and yellow pants which belonged to her husband; and that Lee had on light brown or tan corduroy pants, which were faded. She stated that all three of the men while in the house put on blue shirts which belonged to her husband. The prosecutrix identified, and the State offered in evidence as exhibits to the prosecutrix' testimony, the pillow case which Foreman had put over her head, and the pair of her husband's pants and the strips of pants which had been torn up and used to tie her feet to the bed. On cross-examination the prosecutrix was asked to describe the three men who entered her home as to height and weight. She stated that Cook was the tallest of the three men; that Lee was some shorter than Cook, but was much heavier; that Foreman and Lee were about the same size; that Lee's voice was different from the voices of Foreman and Cook. She was then asked how she...