McEwen v. State

• Decision Date: 11 June 1923
• Docket Number: 23273
• Citation: 132 Miss. 338,96 So. 690
• Court: Mississippi Supreme Court
• Parties: MCEWEN v. STATE

96 So. 690

132 Miss. 338

MCEWEN v. STATE

No. 23273

Supreme Court of Mississippi

June 11, 1923

1. INDICTMENT AND INFORMATION. Duty of court where indictment in separate counts charges two distinct felonies, differing both in elements and punishment, stated.

If an indictment in separate counts charges two distinct felonies differing both in their elements and their punishments, on timely objection the trial court should, in its discretion (a) sustain a demurrer to the whole indictment; (b) sustain a demurrer to any count thereof; (c) order separate trials on the counts; or (d) compel the prosecutor to elect upon which count he will ask a verdict.

2 WITNESSES. Testimony that witnesses' reputation for truth and veracity good inadmissible, where such reputation not assailed.

Testimony that the reputation of a witness for truth and veracity is good is inadmissible, where the reputation of the witness therefor has not been assailed.

HON. D M. MILLER, Judge.

APPEAL from circuit court of Pike county, HON. D. M. MILLER, Judge.

Sidney McEwen was convicted of statutory rape, and he appeals. Reversed and remanded.

Reversed and remanded.

Price & Price, for appellant.

The defendant demurred to the indictment. The demurrer was overruled. The defendant then moved that the state be required to elect upon which count in the indictment it would proceed to put the defendant to trial, and that motion was overruled and the defendant was forced to trial upon an indictment charging distinct and separate offenses in the separate counts, carrying each different and distinct penalties with different and antagonistic rules of evidence governing the defense in each count. When all the evidence was in, the defendant renewed his motion to require the state to elect, and it was overruled.

In Freeman v. The State, 90 Miss. 315, the indictment charged the defendant with unlawfully setting fire to and burning a barn and about seventy-five bushels of corn being the property of J. L. Swain, and the court in deciding the case, following the general rule, said: "An indictment which charges two distinct offenses, punishable by different terms of imprisonment in the same count is demurrable." Walker v. State, 41 So. 8; State v. Reeves, 76 Miss. 435.

In Breeland v. The State, 79 Miss. 527, the court says: "That the Act of 1899, making it a felony for a person by threats of injury, to intimidate another into changing or abandoning his home or employment, creates two different and distinct offenses, and it is not permissible to charge them both in the same count of the indictment."

In The State v. Walker, 88 Miss. 592, the court held that a count in the indictment which charges the receipts of deposits from divers persons without informing such persons and depositors of the insolvent condition of the bank, is double, as is likewise a count that charges that deposits were received from several persons named, without giving the names.

In The State v. Brown 28 So. 752, the indictment charged the defendant did put in the ballot box and permitted to be put in the ballot box, certain ballots not given by the voter at the election and did destroy and change certain ballots given him by the elector, rendered the indictment faulty for duplicity. The two felonies charged in the indictment are not felonies in the same degree, as decided in 13 Smedes & Marshall, page 468, but whatever may be the rule of duplicity or offenses charged in the same count, it is the fixed rule in this state that different counts in the same indictment for independent and different offenses shall not be joined in the same indictment." The same rule that condemns two different charges in the same count, likewise and for the same reason condemns two different and distinct crimes in different counts. Cannon v. State, 75 Miss. 364; Reeves v. State, 76 Miss. 435.

The settled rule in this state is: That it is bad practice to join in the same indictment counts for distinct felonies in different degrees with different punishments, and if that be done, the court may, on timely objection, quash the indictment. The court there exercised its discretion by sustaining the demurrer. To hold that it erred, would be now to declare that good practice which has always been condemned as bad. Burges v. The State, 81 Miss. 482.

We insist that it will be hard to conceive a case where one put on trial for his life, his liberty or his property could have been more seriously prejudiced than the defendant in the trial of this cause. State v. Burges, 81 Miss. 482; State v. Reeves, 76 Miss. 435; Strawhern & Grizzle v. State, 37 Miss. 422; Anna Kate Whitfield v. City of Meridian, 66 Miss. 572; T. J. Bailey v. State, 67 Miss. 332; William Naul v. McComb City, 70 Miss. 699.

What shall be the rule? Shall one suffer so great an injustice then answer for it by cloaking it under the court's discretion? The motion to elect was timely made. 68 Miss. 371; 54 Miss. 657; 81 Miss. 482.

On the improper admission of evidence--We now come to a point in this case that we think should reverse it regardless of every other question raised in the record. After the defendant had rested, the state, in rebuttal, was allowed over the defendant's objection, to introduce twenty witnesses to testify to the reputation for chastity of the prosecutrix. We feel like this exceeded the right of the state upon a question so seriously involved in the trial and was introduced for the sole purpose of influencing the jury and leading them to believe that the county at large was against the defendant. This was using the whole power of the state to oppress the weak. But this is not all, the state went much further, and over the defendant's objection and in rebuttal placed fourteen witnesses on the stand, page 41, of the record, to prove that the reputation of the prosecutrix for truth and veracity was good, and too, when the reputation for truth and veracity had never been questioned under the law.

In Woods v. State, 90 Miss. 245, the defendant was charged with assault and battery with intent to kill. The star witness for the state was Edwards. Edwards evidently showed marks of impropriety and reflected doubt upon the main issue. At this stage of the state's case the district attorney was allowed to bolster up the state's case by showing that witness Edwards had good character. Judge CALHOON, speaking for the court said: "It was highly improper for the state to show good character of Edwards when no attack was made upon it." If the proof of good character, of itself may create a reasonable doubt which may be acted upon, as held in Lewis v. State, 93 Miss. 697, when offered in the interest of the defendant, then proof of good character of the state's main witness must be of unwarranted power against the defendant and would likely remove that reasonable doubt of guilt and no one could doubt that this evidence was highly prejudicial and we think, controlled the verdict in this case. 97 Miss. 353. See 112 Ill. 263.

Mr. Wigmore, in his valuable work on evidence says in section 1109: "No court favoring admission seems to have attempted to reasoned justification of its policy and the great majority of jurisdictions agree in excluding such evidence. 15 A. S. R. 1065; Bell v. State, 27 So. 414.

We submit further, that with two separate and distinct cases being tried at the same time, with separate and distinct instructions, with different lines of evidence, the jury was confused and left no guide and the defendant was greatly prejudiced in his rights, and should be granted a new trial.

S. C. Broome, Special Assistant Attorney-General, for the state.

Section 1904, Hemingway's Code, is as follows: "In the trial of all cases under section 1, of this act, it shall be presumed that the female was previously of chaste character and the burden shall be upon the defendant to show that she was...