Simmons v. State

• Decision Date: 28 June 1915
• Docket Number: 17948
• Court: Mississippi Supreme Court
• Parties: SIMMONS v. STATE

68 So. 913

109 Miss. 605

SIMMONS v. STATE

No. 17948

Supreme Court of Mississippi

June 28, 1915

APPEAL from the circuit court of Lincoln county. HON. M. MCCULLOUGH Special Judge.

J. E Simmons was convicted of rape and appeals.

The facts are fully stated in the opinion of the court.

Affirmed.

R. W Cutrer, for appellant.

The motion to quash the venire drawn in this case should have been sustained, because the board of supervisors of Lincoln county in preparing the list of jurors to serve for the year 1914 disregarded section 2688, Code 1906, in that they did not draw the jury from the different supervisor's district as set out in this section, and a special venire drawn therefrom should be quashed. Purvis v. State, 71 Miss. 706; Litford v. State, 93 Miss. 419.

It was error for the court to overrule the motion to strike out of the indictment the words: "Willfully, violently, forcibly and feloniously assault one Retta Simmons, and did then and there violently, forcibly, rape, ravish and carnally know the said Retta Simmons."

This is an indictment charging the ravishing of a young girl under twelve years of age; a separate and distinct offense from raping a female over twelve years of age. There are two offenses set out in section 1358, Code 1906, Acts 1908, at page 187. We invite the court's careful consideration of these statutes. We quote Acts 1908, page 187; "Every person who shall be convicted of rape, either by carnally and unlawfully knowing a female child under the age of twelve years" this is the part that applies to the case at bar.

We quote further: "Or by forcibly ravishing any female of the age of twelve years and upward, or who shall have been convicted of having carnal knowledge of any female above the age of twelve years without her consent, etc." This latter quotation applies where the female is over twelve years of age. Our contention then is, in an indictment where the female is under twelve years of age, and the state relies upon that fact alone; for a conviction it is error to insert in the indictment the word supra, and if the indictment charges that it was wilfully, violently, forcibly and feloniously done, the state must prove these facts, and in failing to so prove the prosecution must fail, regardless of whether the female is under age or not.

When the offense is charged to be rape, forcibly and against the will, it should be proved as alleged in the indictment, no matter what the age of the female may be, and the accused ought not, on such charge, to be convicted of the separate offense of unlawfully having carnal knowledge of a child under twelve years of age. Bish. St. Cr., sec. 486; Vasser v. State, 55 Ala. 264; Greer v. State, 50 Ind. 267.

When the offense is charged to have been done forcibly and against the will, the principle that a child of tender age cannot consent, should not be invoked. If the offense is against a child under the age of twelve years, and it is desired to avoid the necessity of proving that it was committed forcibly and against her will, the indictment should be so drawn so as to accomplish that end.

To charge one with an act which is unlawful, because it is done with force and against the consent of another, and to convict him without proof of these essential elements of the crime, or to dispense with or supply such proof on such charge, on the theory that, if there was consent, the party had not capacity to give it, would be a proceeding wholly inconsistent with the justice and fair dealing which should and does characterize the administration of public law.

Bonner v. State, 3 So. 663. Bishop says: "One cannot be convicted of the statutory offense of unlawfully having carnal knowledge of a child, under the age specified in the statute, on an indictment in the ordinary form, as for rape on an adult. Bish. St. Ct., sec. 486.

Therefore, we say, the facts in this case is one thing and the indictment another, and for this reason the case should be reversed, the indictment quashed, and the defendant held for proper indictment, if the facts are sufficient to hold him.

Geo. H. Ethridge, Assistant Attorney General, for the state.

The next point raised in the brief of counsel is the indictment charged in this case by force and against the will of the little girl, and it is claimed that the court erred in not striking these words from the indictment on motion of the defendant for that to be done, and the case of Bonner v. The State is relied upon to sustain this point. This indictment is not the same as the indictment in the Bonner case, and that cause is not authority here. If it were directly in point it is decided wrong, because under the statute it is immaterial as to a female under twelve years of age whether force was used or not, and it would be merely surplusage to use the words "forcibly and against her will."

The case of Burrell Davis v. The State, 42 Texas Reports, 226, is a case which presents the true doctrine on the allegations where an indictment contains the allegation that the female was under the age of statutory consent. If the allegation had been merely by force and against the will, without any allegation as to age, then the state would have come within the rule announced in the Bonner case where the offense could be proved as laid; an allegation of age being, a necessary element of offense if the state relies on nonconsent to make out its case. But where the allegation in the indictment is that the child is under the statutory age, the mere allegation of forcibly and against her will would be surplusage.

It is next insisted that the motion to quash the venire should have been sustained because the jury was not drawn in the manner prescribed by law. I submit that there is no merit in this contention; that the jury laws are merely directory, and there was no abuse or prejudicial error shown in this record that would entitle the defendant to complain of the jury selected. It does not appear in the record that the jury was not a proper and competent jury, and it does not appear that they were not qualified to serve as such; and section 2718 of the Code applies in full force in this case.

I respectfully submit that the evidence is conclusive, if the state's witnesses are believed to be true, and the jury are the ones that have the right to say whether their testimony is the truth or not. It is not the function of this court to pass upon the credibility of the witnesses. If the witnesses for the state state enough to make out a case, and the jury believe their statements, the courts are, and ought to be, bound by them. They have the parties before them, see them and know their history and surroundings, in a measure, and have many facilities for knowing the truth that this court cannot get from the printed record.

I submit that the case ought to be affirmed.

STEVENS, J. SMITH, C. J., (concurring). COOK, J., (dissenting).

OPINION

STEVENS, J.

This is the third time this case has come before this court; the appeal each time being prosecuted by appellant from a judgment of conviction on the charge of rape. The material facts of the case and the former opinions of this court reversing the case will be found in 105 Miss. 48, 61 So. 826, and 64 So. 721. In this third appeal there are twenty-eight assignments of error, all of which have had our careful analysis and consideration. A discussion in this opinion of all these assignments would be neither interesting nor profitable. We must be content with the statement of the conclusion to which a painstaking reading of the record leads us, treating, however, with some detail the eighth assignment of error.

It is contended by the appellant in the outset that no crime whatever is shown. The innocent and injured little daughter, under twelve years of age at the time of the alleged crime, was not put on the witness stand by either the state or the defendant, and the testimony on the third trial of the case below contained, for the first time, the evidence of appellant, as a witness in his own behalf, and of his wife, both parents of the injured party. The wife attempts to corroborate the account of appellant to the effect that the injury, from the effects of which the child was brought home faint and bleeding, was caused by a barbed wire. There is in our judgment, sufficient evidence of the guilt of the accused to support this third verdict of guilty rendered by a jury, and rendered in this instance upon and after receiving instructions from the court which are admittedly proper, full, and complete. The jury was warranted in finding that the witnesses for the defense were contradicted in many material respects, and especially by the very character of the injury itself. The bleeding wound, largely internal and lacerated, spoke in more convincing terms than any words of protesting innocence uttered from the witness stand by the accused and other members of his family. The jury were the sole judges of the credibility of the witnesses and the weight of the testimony of any witness or other probative fact in the case, and unless there is shown some material error of law in the submission or presentation of the case to the jury, then the case must and should be affirmed.

The eighth assignment of error is as follows:

"The court erred in overruling defendant's motion to quash the venire in this case, because same was not drawn by the board of supervisors according to law as set out in section 2688, Code 1906."

In support of the motion to quash this venire appellant offered in evidence the minutes of the board of supervisors of Lincoln county, showing the order of January 6, 1914, drawing jurors to serve for the year. It is contended that this order and the list of jurors so drawn does not comply...