Lewis v. State

• Citation: 183 Miss. 192,184 So. 53
• Decision Date: 31 October 1938
• Docket Number: 33262
• Court: United States State Supreme Court of Mississippi
• Parties: LEWIS v. STATE

184 So. 53

183 Miss. 192

LEWIS v. STATE

No. 33262

Supreme Court of Mississippi, Division A

October 31, 1938

APPEAL from the circuit court of Lincoln county HON. J. F. GUYNES, Judge.

(Division A.)

1 RAPE.

In prosecution for rape of 8-year-old girl, fact that rape was not accomplished by force or violence or against the will of the child was immaterial (Code 1930, sec. 1122).

2 RAPE.

In prosecution for rape of 8-year-old girl, question of defendant's guilt was for jury (Code 1930, sec. 1122).

3. CRIMINAL LAW.

In rape prosecution, error, if any, in introduction of testimony of father of prosecutrix relating to complaint made to him by prosecutrix before introducing testimony of prosecutrix as to the offense in question, was cured by fact that prosecutrix thereafter testified (Code 1930, sec. 1122).

4 WITNESSES.

In prosecution for rape of 8-year-old girl, admitting testimony of girl over objection that she did not possess necessary qualifications of witness, was not error in view of examination of girl as to her qualifications (Code 1930, sec 1122).

5. RAPE.

In rape prosecution, complaint made by female after she claimed to have been raped is admissible to corroborate her evidence that she had not consented and to sustain her against the charge of recent fabrication of her story (Code 1930, sec. 1122).

6. RAPE.

In prosecution for rape of 8-year-old girl, testimony as to complaint made by girl after she claimed to have been raped was inadmissible to corroborate denial of consent, since the child was without legal capacity to give consent (Code 1930, sec. 1122).

7. RAPE.

In prosecution for rape of 8-year-old girl, testimony of girl's lather as to complaint made by her was admissible to sustain girl against charge of fabrication of story (Code 1930, sec. 1122).

8. RAPE.

In rape prosecution, complaint of female after she claimed to have been raped must be voluntarily made to be admissible in evidence (Code 1930, sec. 1122).

9. RAPE.

In rape prosecution, whether complaint which had been made by female after she claimed to have been raped is admissible when obtained by means of questions depends on the relations between the female and the person asking the questions, the circumstances under which they are asked and their character (Code 1930, sec. 1122).

10. RAPE.

In prosecution for rape of 8-year-old child, testimony of complaint which child made to father after she claimed to have been raped which was obtained by father's threat to whip child if she did not tell him what had happened and by cross-examination of child when she was reluctant to tell what had occurred was inadmissible notwithstanding that defendant had requested child not to tell what had occurred since voluntary character of complaint was destroyed (Code 1930, sec. 1122).

11. RAPE.

In prosecution for rape of 8-year-old child, testimony of child's father and another witness to the things they saw at place which was pointed out by child as the place where she claimed the alleged rape occurred was inadmissible since pointing out of place by the child was in effect statement by her to them of the details of the alleged rape, especially where place examined was not shown by testimony of child or any other witness to have been the place where the alleged rape occurred (Code 1930, sec. 1122).

12. RAPE.

In rape prosecution, statement of complaining witness to third person of details of alleged rape is inadmissible (Code 1930, sec. 1122).

HON. J. F. GUYNES, Judge.

APPEAL from the circuit court of Lincoln county, HON. J. F. GUYNES, Judge.

Jack Lewis was convicted of rape, and he appeals. Reversed and remanded.

Reversed and remanded.

E. C. Barlow, of Brookhaven, for appellant.

The court erred in failing or refusing to comply with defendant's request or objection to the testimony of Vardaman Rollins, in requesting same to be heard by the court out of hearing of the jury to determine admissibility.

Rollins' whole testimony is irrelevant, inadmissible and should have been excluded by the court on the ground that under the testimony of this witness there was no spontaneous outcry from the alleged injured female. Taking the whole statement by the witness Rollins as to the report made to him by his child shows clearly that no outcry was made by the alleged injured female child, as contemplated and required by the law with reference to rape. But her whole statement came as either the result of a threatened whipping or the result of the witness Vardaman Rollins coaxing her and begging her to make the alleged statement, and could only have been made, taking his own statement to be true, either by duress, threats of the whipping or some unknown promise on the part of the witness Rollins, but does not rise to the dignity of the outcry of outraged virtue, as required by law.

Richardson v. State, 56 So. 454, 100 Miss. 514; Baker v. State, 33 So. 716, 32 Miss. 84; Anderson v. State, 35 So. 202, 82 Miss. 784; Jeffries v. State, 42 So. 801, 89 Miss. 643; Simmons v. State, 61 So. 826, 105 Miss. 48; Ashford v. State, 33 So. 174, 81 Miss. 414; Dickey v. State, 38 So. 776, 86 Miss. 525; Frost v. State, 47 So. 898, 94 Miss. 104; Clark v. State, 87 So. 286, 124 Miss. 841; Adams v. State, 47 So. 787; Stewart v. State, 49 So. 178; Spurlock v. State, 130 So. 155; Sanders v. State, 130 So. 112, 158 Miss. 234; Gillis v. State, 120 So. 455, 152 Miss. 551.

In cases of rape is the only place where the rule against hearsay evidence is relaxed and where hearsay evidence permitted with reference to the outraged female making complaint, but that complaint must be a spontaneous complaint and made freely and voluntarily on the part of the injured female and come as a spontaneous outcry of outraged virtue before same is admissible in court. But, in this case, the alleged outcry was carefully picked out of prosecutrix by her father and after he had threatened to whip her if she did not tell him what he wanted to know.

The court erred by overruling the objections of appellant to the testimony of the witness Rollins relative to the description of the alleged scene of the alleged crime.

Jeffries v. State, 42 So. 801, 89 Miss. 643; Simmons v. State, 61 So. 826, 105 Miss. 48; Ashford v. State, 33 So. 174, 81 Miss. 414; Frost v. State, 57 So. 221, 109 Miss. 796.

The court erred in overruling the objection of appellant as to the comparison of the tracks at the alleged scene of the alleged crime and the tracks at the mail box. Such evidence was only a part of the testimony pointed out by the little girl, and could only serve the purpose to inflame the minds of the jury against appellant and prejudice his cause.

Ashford v. State, 33 So. 174, 81 Miss. 414; Dickey v. State, 38 So. 776, 86 Miss. 525.

The court erred by permitting all of the testimony to be placed before the jury as is shown by the record before putting on the prosecutrix. The district attorney undertaking to build his case on secondary evidence and incompetent evidence without placing first the prosecutrix on the stand.

The court erred in overruling the objections made by appellant to the testimony and opinion made by Dr. W. H. Frizell.

The doctor never at one time in his testimony stated that the child had been raped, neither did he give such as his opinion.

Grogan v. State, 118 So. 627, 151 Miss. 652; Fairley v. State, 120 So. 747, 152 Miss. 656.

The court erred by permitting the witness Annie Laura Rollins, the prosecutrix in the case, to testify over the objections of appellant. When asked what she studied at school she stated books, she studied three. When asked about Sunday School she stated she did not go and did not know where one was, then being question as to what she told when she came to court she said "tell what happened, " and then in response to the question, "if it was right or wrong for a little girl to tell a story" she said it was right and then after the court's suggestion she said it was wrong. Then, asked if she knew what it meant to swear to tell the truth, the child said that she did not know. Then asked the question "do you know what it is to promise to tell the truth?" her reply "no sir." Then other questions show that the child did not understand the meaning and consequences of an oath and should not have been admitted before the jury, as is shown all of the way through her testimony, and that she was either incompetent as a witness for lack of intelligence or else she was trying to follow a story told to her by others.

Peters v. State, 63 So. 666; Mackey v. State, 103 So. 379; Jackson v. State, 130 So. 729; Trim v. State, 33 So. 718.

All that could be said of the outcry supposed to have been made is that it was forced from the prosecutrix as shown by testimony of her father, Vardaman Rollins, and which clearly puts this case within the rule laid down in the cases of:

Richardson v. State, 56 So. 454; Baker v. State, 33 So. 716, 32 Miss. 84; Anderson v. State, 35 So. 202; Adams v. State, 47 So. 787; Stewart v. State, 49 So. 178; Monroe v. State, 13 So. 884, 71 Miss. 196; Rawls v. State, 62 So. 420, 105 Miss. 406; Harvey v. State, 26 So. 931; Tynes v. State, 29 So. 91; Ashford v. State, 35 So. 569; Joslin v. State, 91 So. 903, 121 Miss. 181; Allen v. State, 45 So. 833; State v. Bradford, 89 So. 767, 126 Miss. 868; Newton v. State, 12 So. 561.

With reference to the testimony of the witness of Oscar McGehee the court erred in overruling the objections made to this testimony. The witness McGehee stated that the child pointed out the place to him on Sunday, January 30, 1938, and stated that the child and Mr. Rollins were with him at that time when Mr. Rollins had formerly testified that he, his wife and child were the only ones...