Long v. State

• Citation: 100 Miss. 7,56 So. 185
• Court: United States State Supreme Court of Mississippi
• Decision Date: 12 June 1911
• Parties: DR. J. M. LONG v. STATE

56 So. 185

100 Miss. 7

DR. J. M. LONG v. STATE

Supreme Court of Mississippi

June 12, 1911

March 1911

APPEAL from the circuit court of Wayne county, HON. JNO. L. BUCKLEY Judge.

Dr. J M. Long was convicted of seduction and appeals.

The appellant was indicted and convicted of the seduction of one Cora Sellers, an unmarried female above the age of 18. The prosecutrix testifies that she yielded to his solicitations because of a promise to marry her, and that she was of previous chaste character. The only corroboration of her testimony is that of her brother, who testifies that he went with the prosecutrix to see the appellant in an attempt to persuade him to marry her, and that appellant told him that he did not have the money, that he just said he could not marry her then, as he was not prepared to take care of her and that he would if she would come back to Waynesboro and wait a week or so on him.

Reversed and remanded.

E. W. Stewart, for appellant.

Miss Cora Sellars, the prosecutrix, was introduced by the prosecution and upon her testimony, the state rested its case, whereupon, the defendant, by his attorney moved the court to exclude the evidence of the state for insufficiency, which was overruled by the court and the defendant reserved an exception.

In overruling the motion, the court erred, for there was not sufficient evidence to warrant a conviction of the defendant at this time, since section 1372 of the Code of 1906 requires the testimony of the prosecutrix to be corroborated. Can it be said that this requirement has been fulfilled in this case? The defendant is not bound to introduce any evidence at all, and is entitled, at the least, to have the requirements of the law met properly. Is there a jury to be found if properly instructed, that would have convicted the defendant, unless they were prejudiced, and if they did, is there a judge on the bench that would have let the verdict stand when only the evidence of the prosecutrix was all that was before the court and the jury? See section 1372 of the Code of 1906. Reddick v. State, 72 Miss. 1008; Ferguson v. State, 71 Miss. 805, 12 Cyc. 594b.

Judge Wood, in the Reddick case above referred to, said, "If, when the state rests in chief, manifestly no case has been made out against the accused, a motion to exclude the evidence and direct an acquittal should be sustained. If the motion is overruled it is improper, after the defense rests, to permit the state, under the guise of rebutting, to introduce the testimony chiefly relied upon to secure a conviction." Now in the case at bar, the motion had been made and it was overruled; So we maintain that it was manifestly an error for the court to admit the testimony of the witnesses Jake West and J. N. Sellars, witnesses for the state, after the defendant had closed its case, if at all. The state pretended to offer it as rebuttal evidence when, in fact it was only to make out its case for the first time. The prosecution has no right, either legally or morally, to experiment with the defendant and under the guise of offering evidence in rebuttal, to make out the state's case for the first time. To follow this method of practice would soon require the defendant in criminal cases to exonerate himself before the state introduced any evidence. Such practice should be repressed by the courts, which are not organized to convict prisoners, but to see that trials are absolutely fair and impartial. Reddick v. State, 72 Miss. 1008, 12 Cyc. 557-8 (11), and cases cited under reference number 72.

In prosecutions where the gist of the offense is the having of sexual intercourse (or the attempt to have it) with the prosecutrix, it is said that prosecutrix's reputation for chasity may be attacked, and her meretricious mode of life and particular acts of lewdness shown to discredit her as a witness; but such proof, in reality, where admitted, is principally admissible as substantive evidence to rebut the evidence adduced by the state, and only incidentally as impeaching evidence. 7 Ency. of Ev., page 51, and citations therein. Then if this is sound law, it was error for the court to exclude the testimony of the witness George Stephens, a witness for the defense. The court excluded it because it did not impeach the prosecutrix. Furthermore, it should have gone to the jury for what it was worth, in as much as the prosecutrix had practically admitted on cross-examination that, there were stories of her chastity current in her neighborhood before the alleged seduction by the defendant. Again it would show that no lady of a pure heart, an innocent mind and a virtuous character would have been lying out in the woods, upon the ground, with a man. The jury were certainly conversant with the rules of society in the county. Keller v. State, 102 Ga. 506; O'Neill v. State, 85 Ga. 383.

It is actual chastity not mere reputation for chastity, that is required, and the court erred in not excluding the testimony of Jake West. Carroll v. State, 74 Miss. 688; Powell v. State, 20 So. 4; Suther v. State, 118 Ala. 88, 24 So. 43.

I contend that the verdict was contrary to the law and evidence in the case for the state has not sufficiently corroborated the testimony of the prosecutrix as to promise of marriage and sexual intercourse.

Carl Fox, assistant attorney-general, for appellee.

It is contended under the decisions of this court that the testimony of the prosecutrix was not sufficiently corroborated.

In Ferguson v. State, 71 Miss. 805, 15 So. 66, 42 A. S. R. 492, it was held that it was not necessary that the prosecutrix be corroborated on every material point essential to make out the crime.

This case was approved in Norton, v. State, 72 Miss. 128, ___ So. 264, 18 So. 916, 48 A. S. R. 538. These cases were recently followed in the case of Carter v. State (Miss. 1911), 54 So. 805. In the latter case, the court, inadvertently, no doubt, stated that the prosecutrix's testimony "that she was of 'previous chaste character,' and that the carnal knowledge was obtained by virtue of a false and feigned promise of marriage" must be corroborated by other evidence. In the case of Ferguson v. State, supra, it was stated in most emphatic language, that she was presumed to have been of previous chaste character at the time of the alleged seduction, and it was not necessary that her testimony, that she was chaste, be corroborated. I do not think the authorities warrant the statement that she must be corroborated as to her previous chastity. If, however, this court should follow Carter v. Stale, and hold that corroborative evidence of the prosecutrix's previous chaste character is necessary, the record in this case contains such corroborative testimony.

The testimony of Jake West, that the reputation for chastity of the prosecutrix was good, in the community where she lived, does sufficiently corroborate the prosecutrix as to that question. Powell v. State (Miss.), 20 So. 4. It is practically impossible to prove a woman's chastity in any other way. The burden is upon the state to prove a negative, that is, that the prosecutrix has not had any intercourse with any other man. The only way to prove this fact by direct testimony, would be to offer as witnesses every man who had ever had an opportunity of intercourse with her, and in addition, to prove that no man, except these witnesses had ever had such opportunity.

The testimony of the prosecutrix, that the defendant had intercourse with her, is corroborated by the testimony of her brother J. N. Sellars, which is set out herein, above. He did not testify that the defendant admitted, in so many words, in the conversation in the hotel in...