McBride v. State, 56361

• Decision Date: 30 July 1986
• Docket Number: No. 56361,56361
• Parties: Johnny Ray McBRIDE, v. STATE of Mississippi.
• Court: Mississippi Supreme Court

Page 581

492 So.2d 581

Johnny Ray McBRIDE, v. STATE of Mississippi.

No. 56361.

Supreme Court of Mississippi.

July 30, 1986.

Morgan D. Brackeen, Decatur, Hugh Gibson, Liston, Gibson & Lancaster, Eupora, for appellant.

Edwin Lloyd Pittman, Atty. Gen. by Billy L. Gore, Asst. Atty. Gen., Jackson, for appellee.

Before ROY NOBLE LEE, P.J., and PRATHER and ROBERTSON, JJ.

ROY NOBLE LEE, Presiding Justice, for the Court:

Johnny Ray McBride was convicted in the Circuit Court of Webster County for raping a female child under the age of twelve (12) years and was sentenced to life in custody of the Mississippi Department of Corrections. He has appealed to this Court and assigns five (5) errors in the trial below.

Appellant, twenty-three (23) years of age, and the victim, age ten (10) years, had been acquainted with each for some time prior to the rape incident, both living in the McBride Quarters, Maben, Mississippi. During the evening of December 23, 1983, the prosecutrix was sent by her grandmother to purchase some cokes at the house of one Miss Josie. No one answered the door and prosecutrix started to return home. According to her, as she walked back, appellant invited her into his trailer to "get some meat." Thinking that appellant was going to give her something to eat, she proceeded into the trailer where appellant grabbed her by the arm, pulled her into the bedroom, removed her clothes and began to rape her. He bit her several times.

After the incident, the victim ran out the door onto the porch, clad only in a sweater, and screamed. In the meantime, her grandmother and aunt had gone in search of her when she had not returned, and as they were passing appellant's home, the young girl came running out. The three of them proceeded to the home of one Mary Graham. Shortly thereafter, appellant came to the Graham house. Three witnesses testified he was asked by Minnie Pearl Williams, appellant's aunt, whether he did it (raped the child), and that appellant said "She told me to get a little piece, and I got a little bit" or something to that effect.

The victim was taken to the hospital emergency room where she was examined by Dr. Charles Ozborn. He testified that her vagina and perineum were lacerated and bleeding and he observed bruises and teeth marks on her right shoulder. No spermatazoa was found.

Appellant testified that he invited the prosecutrix into his trailer to get some hoghead souse for a friend; that after giving the souse to her, the prosecutrix asked, if she could use his bathroom, and she was permitted to do so; that when she went to the bathroom, appellant went to the bedroom, took off his clothes, got in bed, and pulled the covers over his head; that the prosecutrix came to the door of the bedroom and he ordered her to get out of his house; and that the next thing he knew, she was on the porch yelling that appellant had tried to rape her.

I.

THE LOWER COURT ERRED IN OVERRULING DEFENDANT'S MOTION FOR A

CONTINUANCE AND REQUEST FOR AN ADDITIONAL SPECIAL VENIRE

WHEN THE SPECIAL VENIRE WAS EXHAUSTED AND DEFENDANT WAS

FORCED TO ACCEPT JURORS FROM THE REGULAR JURY PANEL.

The lower court granted a special venire of sixty (60) individuals upon the motion of appellant. Of those sixty names drawn, forty-one (41) were summoned and appeared in court. In conducting the voir dire of the venire, and challenging certain veniremen, the special venire was exhausted and the court resorted to the regular jury panels for completion of the jury. Appellant moved for a continuance and that another special venire be drawn for the selection of the jury. In overruling the motion, the trial judge said:

Let the record reflect that we have gone to the regular venire after having exhausted the special venire. Let the record also reflect that this jury panel was qualified on Monday and has not sat on a single case during this term of court. The motion is overruled.

Mississippi Code Annotated Sec. 13-5-77 (1972) is a complete answer to Assignment I:

When any person charged with a capital crime, or with the crime of manslaughter, shall have been arraigned and the plea of not guilty entered, it shall be the duty of the court, upon the demand of the accused or the district attorney, to cause to be drawn, in open court, from the jury-box as many names as the judge in his discretion may direct, not to be less than forty, and it shall be the duty of the clerk to issue a special venire facias, commanding the sheriff to summon the persons whose names are so drawn, to attend the court on a particular day to be named in the writ. In case the special venire be exhausted without a jury being impaneled from those summoned and in attendance, the court shall proceed to make up the jury for the trial of the case from the regular panel and tales jurors who may have been summoned for the day. If, after exhausting said regular panel and tales jurors, a competent jury be not obtained, the court shall direct the sheriff to summon forthwith as many tales jurors as shall be sufficient to complete the jury.

Suffice it to say, the lower court did not abuse its discretion in declining to grant a continuance upon appellant's motion. Greene v. State, 406 So.2d 805 (Miss.1981).

II.

THE LOWER COURT ERRED IN RULING THAT CONSENT WAS NOT AN

ISSUE WHERE THE DEFENDANT WAS ALLEGED TO HAVE HAD

CARNAL KNOWLEDGE FORCIBLY AND AGAINST

THE WILL OF A CHILD UNDER AGE

OF TWELVE (12) YEARS

OLD.

Appellant filed a motion in limine requesting the lower court to restrict the introduction of testimony and references to the fact that consent was not an issue, where the evidence of assault expected to be introduced for the State would indicate force and being against the will of the victim; and that consent was not an issue. Appellant further contends that Instruction S-1 was prejudicial; and that he was not apprised of the type rape he would be called upon to defend, viz, statutory rape or forcible rape. The indictment charged:

JOHNNY RAY McBRIDE ... did unlawfully and feloniously have carnal knowledge of ..., a female child under the age of twelve (12) years, the said Johnny Ray McBride being then and there a male person over eighteen (18) years of age, in violation of MCA Sec. 97-3-65(1) (Supp.1983), ...

Instruction S-1 follows:

The defendant, Johnny Ray McBride, Has [sic] been charged by an indictment with the crime of rape.

If you find from all the evidence in this case beyond a reasonable doubt that;

1. ... was a female person under the age of twelve (12) years; and

2. the defendant was a male person above the age of eighteen (18) years; and

3. the defendant, on or about December 24, 1983, in Webster County, Mississippi, either (a) had carnal knowledge of ... by the penetration, however slight, of her female sexual organ with his male sexual organ, or (b) lacerated or tore ... female private parts in the attempt of [sic] have carnal knowedge of her, then you shall find the defendant guilty of rape.

If the State has failed to prove all of the above elements beyond a reasonable doubt, then you shall find the defendant not guilty.

The alleged victim's resistance or lack of resistance is not relevant to your consideration, because a female child under twelve years of age cannot legally consent to the act of sexual intercourse, if any.

Appellant was charged with capital rape as defined by Mississippi Code Annotated Sec. 97-3-65(1) (Supp.1983), viz, unlawful carnal knowledge of a female child under the age of twelve (12) years. The indictment did not charge that the act was forcefully done against the will of the child. Such an allegation was not necessary under the statute. Although the State's proof went to the extent that the child was forcibly raped, viz, assaulted, lacerated and torn, the proof did not change or vary the charge as laid in the indictment. The State simply proved more than it was required to. The child was under the age of consent, and it was not material whether the rape was accomplished by force or violence and against the will of the child. Consent is no defense to the charge. Brooks v. State, 242 So.2d 865 (Miss.1971); Lewis v. State, 183 Miss. 192, 184 So. 53 (1938); Williams v. State, 47 Miss. 609 (1873); Lee v. State, 322 So.2d 751 (Miss.1975); Upshaw v. State, 350 So.2d 1358 (Miss.1977); Jackson v. State, 420 So.2d 1045 (Miss.1982); Hickombottom v. State, 409 So.2d 1337 (Miss.1983); Anthony v. State, 349 So.2d 1066 (Miss.1977).

There is no merit to Assignment II.

III.

THE LOWER COURT ERRED IN OVERRULING APPELLANT'S OBJECTION TO

INTRODUCTION OF HEARSAY STATEMENTS FROM CERTAIN

WITNESSES FOR THE PROSECUTION.

Vera McBride, Minnie Pearl Williams and Mary Graham talked to the prosecutrix soon after she ran from appellant's trailer. In a short while, appellant went to the Graham home and engaged in conversation with them about the matter. The State called Vera McBride as a witness, and the appellant called Minnie Pearl Williams and Mary Graham as witnesses. Both witnesses testified to the following:

(TESTIMONY OF VERA McBRIDE):

Q. What was the question that Minnie asked the Defendant, Johnny Ray McBride?

BY MR. GIBSON [Counsel for Appellant]

We object, may it please the Court. It is hearsay to repeat what someone else said.

BY THE COURT:

The objection is overruled at this time. She may answer.

BY MR. SNYDER: (To the witness) [Counsel for Appellee]

Q. What question did Minnie ask him?

A. She asked Danny Ray if he did that.

Q. What did Johnny Ray McBride, the Defendant, say?

BY MR. GIBSON:

We object, may it please the Court, to the answer.

BY THE COURT:

Objection is overruled

BY MR. SNYDER: (To the witness)

Q. You may answer the question.

A. He said, 'She told me to get a little piece and I just got a little bit.'

Q. Now, repeat--I missed the first part. What did he say?

A. 'She told me to come on and get a little bit and I got a little bit.'

Q. 'She told me to come on and get a little bit and I got a little bit.'?

A. ...