Spurlock v. State

• Decision Date: 13 October 1930
• Docket Number: 28859
• Citation: 158 Miss. 280,130 So. 155
• Court: Mississippi Supreme Court
• Parties: SPURLOCK v. STATE

130 So. 155

158 Miss. 280

SPURLOCK v. STATE

No. 28859

Supreme Court of Mississippi

October 13, 1930

Division A

1 RAPE.

In prosecution for assault with intent to rape, evidence, though conflicting, held sufficient to identify defendant.

2 RAPE.

In prosecution for assault with intent to rape, evidence held insufficient to support conviction.

HON. S F. DAVIS, Judge.

APPEAL from circuit court of Sunflower county, HON. S. F. DAVIS, Judge.

Albert Spurlock was convicted of an assault with intent to commit rape, and he appeals. Reversed and remanded.

Reversed and remanded.

S. D. Neill, of Indianola, for appellant.

The most that can be shown in this case is assault and battery.

The motion to exclude the testimony when the state rested should have been sustained, this not being done, I submit that the peremptory instruction asked on the part of the appellant should have been given.

Edwin R. Holmes, Jr., Assistant Attorney-General, for the state.

This court has held that the credibility of the witnesses rests solely with the jury.

Hughes v. State, 2 Miss. 88; Owens v. State, 63 Miss. 450.

This court has held that the jury must pass on and weigh the evidence.

Hunter v. State, 74 Miss. 515.

This court has further held in cases where the accused sought to establish an alibi as a defense and thereby a conflict in the testimony arose, that the question was one for the jury.

Petty v. State, 83 Miss. 260, 35 So. 213; Holliday v. State, 108 Miss. 726, at page 731; Matthews v. State, 148 Miss. 696, 114 So. 816; Blockman v. State, 149 Miss. 212, 115 So. 399; Ransom v. State, 149 Miss. 262, 115 So. 208.

The testimony was sufficient to sustain the verdict of guilty as charged.

Thompson v. State, 124 Miss. 463, 86 So. 871; Hicks v. State, 130 Miss. 411, 94 So. 218; Watkins v. State, 134 Miss. 211, 98 So. 537.

OPINION

McGowen, J.

The appellant was indicted, tried, convicted, and sentenced to the penitentiary for life by the verdict of the jury, for making an assault, with intent to rape, on Mrs. Maud Wilson.

The prosecutrix, Mrs. Maud Wilson, was a deaf mute, and her testimony was delivered through an interpreter in the court below. The material part of the evidence was to the effect that on the night of December 24, 1929, she was alone with her baby in her home, which was situated about fifteen yards from the public road. There was snow on the ground. She said she heard a knock on the front door, and upon opening it saw a negro, whereupon she slammed the door; she then saw the man go around the house, and later heard him breaking in the back door. The house is described as a "shotgun house"--two rooms in a row, with a middle door. She then states that he appeared in her room, picked up a broom which was in the room, and pointed it at her. The only light in the room was the light from the fire, which was burning. She states that he caught her by the throat, choked her, and when she screamed, opened his knife; there was a slight cut on her arm and in her hand. When she screamed again he released his hold upon her throat and arm, and ran away. She then took her baby and went to the home of a neighbor, about two hundred yards away, and reported the incident.

She states that on the following day the appellant was brought by a large crowd of men to the front of her house, where she says that she identified him as being the man who assaulted her in her room. It plainly appears that after the appellant was carried to her house, he was turned over to a constable or deputy sheriff, and carried to the jail.

Mrs. Wilson testified that she reported the matter to her husband upon his return from a trip to Yazoo City, after nine o'clock; the assault having occurred between eight and nine at night. She said that she told her relatives she had scratched the negro on the face and neck, and described him as being rather low and small in stature and light colored.

We have stated her evidence in the strongest light possible from the standpoint of the state. The district attorney constantly led her, and she frequently made statements, which she afterwards corrected, upon leading questions.

A witness for the state testified that the tracks were easily discernible in the snow; that they were small boot tracks, and led from the porch or the front room, around to the back, or to the side, and off to the yard, where a washpot had been taken, and carried to the house, where it was used as a means of climbing into a window on the side of a rear room; and that the entrance was made through this window.

A number of white men went to a negro's home about three-quarters of a mile away, and asked for the appellant; and although he was standing in plain view, none of these witnesses recognized him from her description. They said that the old negro man replied that he was not there. The men went away some distance and watched the house, and the old negro, in company with the appellant, got into a car and drove away. They then secured the assistance of other men, followed appellant, and arrested him at a filling station, where the car had been stopped. One witness said there was a fresh scratch on appellant's forehead. When arrested he had on different clothes from those described by the prosecutrix, and was wearing shoes instead of boots. The tracks led away from the Wilson home, down the public road, in the direction of the place where Spurlock was first found; and the witnesses said that the shoes of the appellant fitted the tracks in the snow.

On behalf of defendant several witnesses testified to an alibi, accounting for the movements of the appellant from sundown until four o'clock the next morning. A physician testified that he examined the appellant in the jail two or three days after the accident, and there were no scars on him save the scar on his forehead, which was an old one, being from a wound in which he (the physician) had taken six stitches when treating it.

It was shown by three witnesses for the appellant that when he was carried before the prosecutrix for identification, she "looked him over carefully," then shook her head and walked back into her room. Her relatives testified that she identified him then and there. The defendant's witnesses testified, as stated, that she did not identify him. Only the...