Pearson v. State

• Court: Mississippi Supreme Court
• Writing for the Court: WHITFIELD, C.
• Citation: Pearson v. State, 97 Miss. 841, 53 So. 689 (Miss. 1910)
• Decision Date: 12 December 1910
• Docket Number: 14688
• Parties: HARVEY PEARSON v. STATE OF MISSISSIPPI

53 So. 689

97 Miss. 841

HARVEY PEARSON v. STATE OF MISSISSIPPI

No. 14688

Supreme Court of Mississippi

December 12, 1910

FROM the circuit court of Amite county, L. H. MCGEHEE, ESQ. Special Judge.

Pearson appellant, was indicted and tried for rape, charged to have been committed upon his own daughter, was convicted and sentenced to the penitentiary for life and appealed to the supreme court. The facts of the case, so far as essential to be known, are clearly inferable from the opinion of the court.

Judgment reversed and cause remanded for new trial.

R. S Stewart, R. E. Jackson and C. V. Ratcliff, for appellant.

The evidence offered on the part of the state, when purged of that which is irrelevant and incompetent, does not warrant the conviction of the defendant, under the rules established by this court in the trial of charges of this nature. Monroe v. State, 71 Miss. 196; Baker v. State, 82 Miss. 84.

Under the facts as shown of record and the authorities cited, this judgment ought to be reversed and must be reversed if this court adheres to its former holdings upon the question of fact.

It is fundamental that the court erred in permitting the counsel for state over defendant's objection to show that the mother and father of the accused had sent him word, or a message about this affair, and had accused him of the same or had asked about the same as any and all remarks or messages of words made, sent or used by the said parties are as to this case hearsay pure and simple, and in no conceivable rule of the law admissible, and could have served but one purpose that of prejudicing the minds of the jury against the defendant, and its admission was error.

The evidence of Butler who testified to an examination of the person of the prosecutrix was clearly inadmissible for two reasons: His opinion was all that he was able to give in the matter, and he based this upon his examination of the party, but he failed to qualify as an expert. Before the opinion of a witness can be received, it must appear that he is an expert in the line upon which his opinion is asked. Second. The examination was made by the witness on the 13th day of May, 1910, when it is alleged that the crime was committed on the first of April, 1909.

By statute the wife is declared an incompetent witness against her husband, yet in the case at bar, the court over the strenuous objection of the defendant permitted both the prosecutrix and the state's witness, Nannie Pearson, to testify to certain conversations and charges made against the defendant by his wife.

The wife could not have been permitted to give these conversations and accusations in evidence, and to permit those who heard them to testify touching what she said and what she charged, violates both rules, one against hearsay and the other against the competency of the wife, and the admission of this evidence assuredly prejudiced the accused. Garner v. State, 76 Miss. 515.

Of all inconceivable ideas, and inconceivable rulings, against all sense of law and reason, the most inconceivable of all, and the most senseless of all in our judgment was the idea and reason of the court, if either existed, in permitting the state to show over the repeated objection of the defendant, that the citizens or some of them had met and held a meeting, organized themselves into a committee, and adjudged the defendant guilty, and then went to him and declared the finding of the mass meeting, without law, leave or license, and to report that the finding was that the accused had better leave the state or prosecution would assuredly follow.

James R. McDowell, assistant attorney-general, for appellee.

Error is charged because of the admission in evidence that the prosecutrix told her mother of the offense as soon as she reached the house after it is alleged to have been committed. It is not attempted to be given in detail. Zadie and her little sister both testified that they went at once and told their mother. Surely this is admissible under the law and the holdings of this court. The fact that she said that her father committed the crime is brought out in this way. The mother immediately sought the father and accused him of the crime, and then went with the little girls and charged him in their presence and he stood mute. Surely it is admissible to prove that one charged with a crime stood mute when the crime was charged in his presence. We have not the power to bring the mother in, the one to whom, naturally, the complaint would be made, because the strange anomaly here presents itself that the mother is the wife of him who is charged with assaulting his child, but we can bring the little girls into court and what they testify he said or did is admissible in evidence.

The fact that it was nearly a year before the public was advised of the crime is due to the relation of the parties.

The testimony of Dr. Butler who examined the prosecutrix just before the trial was objected to, first, because he does not qualify as an expert. The court will observe that he meant he was not a specialist. Any doctor with a license can tell whether the parts of a female have been penetrated, and whether the female is a virgin or not. It does not require an expert. The doctor was testifying to a fact and was not giving an expression of an expert opinion. He testified, as a matter of fact, that the girl's parts had been penetrated; that it might...