Morris v. State
| Decision Date | 07 October 1975 |
| Parties | William MORRIS, Jr., Plaintiff-in-Error, v. STATE of Tennessee, Defendant-in-Error. |
| Court | Tennessee Court of Criminal Appeals |
Richard B. Gossett, Chattanooga, for plaintiff-in-error.
R. A. Ashley, Jr., Atty. Gen., William C. Koch, Jr., Asst. Atty. Gen., Nashville, Stephen M. Bevil, Thomas J. Evans, Asst. Dist. Attys. Gen., Chattanooga, for defendant-in-error.
For reasons discussed below we overrule at the outset assignments of error in this appeal challenging the sufficiency of the evidence. Although the defendant denied the acts upon which his prosecution was based, it is axiomatic that when facts are in dispute it is the prerogative of the jury to resolve the issues and that a reviewing court will not disturb a finding of fact by a jury unless the evidence preponderates against it. McBee v. State, 213 Tenn. 15, 372 S.W.2d 173.
The plaintiff in error contends further in this appeal from his conviction for an attempt to commit sodomy (crime against nature) that the 13 year old boy who related the sordid details he described as an attempt to 'rape' him was an accomplice. He was not, according to credible proof adduced for the consideration of the triers of fact, which included accounts of how the defendant accosted the boy as he was leaving a store in Chattanooga, promised him money, bought him ice cream, took him to his home, undressed, pulled the child's pants and underwear off, told him to lay down on a bed and open his legs, and then attempted unsuccessfully to, as the lad put it, 'stick his private up my leg'. Due to pain occasioned by the attempt, the boy testified, the defendant went into another room to get a lubricant and he fled from the house leaving his pants and underwear behind. The boy was observed going into the house with the defendant by a neighbor, who also saw the little boy run out without his pants on later. This witness gave the child a ride home and was told upon inquiry that 'the guy had tried to rape him'. The boy repeated this to his mother upon reaching home and to a Chattanooga police officer who investigated a prompt complaint.
All of the above detailed evidence establishes to our satisfaction that the boy was not an accomplice, but was a victim.
Even if the youth had been persuaded by the kind treatment of the defendant to permit the act attempted, there is ample corroboration of the victim's testimony in the record, not the least of which was the testimony of the neighbor who saw the boy running away from the defendant's home without his pants.
Also, corroborative of the principal witness's testimony are accounts of statements made to others as soon as possible after the assault. Objections to the testimony of the neighbor, mother and policeman as to the complaint made by the boy were properly overruled. Such a 'hue and cry' following a sexual attack are generally admissible as exceptions to the rule against hearsay evidence. Johnson v. State, 201 Tenn. 11, 296 S.W.2d 832. The exception is elaborated upon in an opinion by Judge Oliver of this Court in Klaver v. State, Tenn.Cr.App., 503 S.W.2d 946.
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