Sanders v. State
| Decision Date | 02 April 1928 |
| Docket Number | 27108 |
| Citation | 116 So. 433,150 Miss. 296 |
| Court | Mississippi Supreme Court |
| Parties | SANDERS v. STATE. [*] |
1 RAPE. Evidence as to rape held to make issue of fact for jury. Notwithstanding unreasonableness and elements of improbability in testimony of prosecutrix, evidence on prosecution for rape held to make issue of fact for jury.
2. CRIMINAL LAW. Testimony of deaf-mute through sign interpreter is not hearsay.
Testimony of deaf-mute through interpreter, he conveying to her in sign language the questions asked, and she replying in such language to him, and he taking down in writing her answers is not hearsay.
3 RAPE. Conviction of forcibly ravishing may be had on prosecutrix's uncorroborated testimony (Hemingway's Code 1927, section 1147).
One indicted under Hemingway's Code 1927, section 1147, for forcibly ravishing prosecutrix, may be convicted on her uncorroborated testimony.
4. CRIMINAL LAW. Verdict held not vitiated by mere fact that one juror was separated a moment from the others on way out of courthouse for supper.
That while one of the jurors was in the toilet the others with the bailiff left the courtroom for supper, he overtaking them a moment later at the courthouse stairsteps, having in the meantime spoken only to the clerk of court to ask where the jury had gone, did not vitiate the verdict and entitle defendant to a new trial.
APPEAL from circuit court of Lafayette county, HON. C. P. LONG, Judge by Interchange.
Will Sanders was convicted of rape, and he appeals. Affirmed.
Affirmed.
John Horan, for appellant.
Rufus Creekmore, Assistant Attorney-General, for the state.
The appellant was indicted and convicted in the circuit court of Lafayette county, under section 1358, Code 1906 (section 1147, Hemingway's 1927 Code), of the rape of Jennie Lee McDowell, and sentenced to the penitentiary for life. From that judgment, he prosecutes this appeal.
Appellant was a married man about thirty years of age at the time of the alleged crime. The prosecutrix, Jennie Lee McDowell, a deaf-mute, was twenty-three years of age at the time she claimed to have been raped by the appellant. She and the appellant had been acquainted for some time prior to June, 1925, during which month and year she claimed to have been raped by appellant. On the day of the alleged crime, the mother and father of appellant were away from their home in the field hoeing, and with them was appellant's wife. Appellant was supposed to be working at a sawmill in the neighborhood. The prosecutrix was at the home of her parents alone. She testified that about eight o'clock in the morning of the day she claimed appellant raped her, he came to her home armed with a pistol; that he proceeded to make an assault upon her; that she screamed one time, and attempted to scream again, but was prevented from doing so by appellant's choking her; that the appellant then threatened to shoot her with his pistol if she called for help, or if she told her parents what he had done; that he dragged her out of her home into the woods, where he kept her three hours; that during that time he had sexual intercourse with her five times, she resisting his assaults as best she could; and when appellant released her, she returned to her home. The mother of the prosecutrix testified that about eight o'clock on the morning of the alleged crime, she heard her daughter scream, but attached no significance to it at the time; that upon returning home, at noon, she found the prosecutrix lying across the bed crying; that upon being questioned, she said she was afraid to stay in the home alone; that the prosecutrix made no complaint to her at that time of having been raped by the appellant, but always appeared to be frightened when appellant was around her. The evidence showed that the prosecutrix did not tell her parents, or any one else, of the alleged crime until she became pregnant and had a miscarriage. Shortly after appellant's arrest, the prosecutrix's mother testified that she had a conversation with appellant, in which he laughed and said:
"I raped your daughter, but you will never be able to convict me, for I can take Bennie Lee Groves and a crowd from Water Valley and prove anything, and if you want to live and do well, you had better not appear against me."
Appellant testified as a witness in his own behalf. He denied ever having sexual intercourse with the prosecutrix, and attempted to establish an alibi, by his own testimony and that of other witnesses.
Appellant contends that the evidence was insufficient to support the verdict of the jury. It is true the testimony of the prosecutrix, upon which appellant's guilt or innocence so largely depends, has many elements of improbability. Notwithstanding, it cannot be said to be unbelievable. In many respects it is unreasonable, but not so unreasonable as to be impossible. We are of the opinion, therefore, that the evidence made an issue of fact for the determination of the jury.
The evidence in the case showed that the prosecutrix was a deaf-mute with little education, not being able to read writing with understanding. An interpreter, familiar with the sign language of the deaf-mute, was appointed by the court, and the prosecutrix gave her testimony in this manner: The interpreter conveyed to the witness, in sign language, the questions asked her by the attorneys representing the respective parties. She replied in sign language to the interpreter, who took down, in writing, her answers. Before giving her testimony, both she and the interpreter were properly sworn. Appellant objected to the testimony so given by the prosecutrix on the ground that it was hearsay. If deaf-mutes have sufficient understanding to comprehend the facts about which they undertake to speak, and appreciate the sanctity of an oath, they may give evidence by signs, or through an interpreter, or in writing, and such testimony, through an interpreter, is not hearsay. Bugg v. Houlka, 122 Miss. 400, 84 So. 387, 9 A. L. R. 480. It appears from the record in this case that there was a compliance with these requirements.
Appellant assigns and argues, as error, the action of the court...
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