Tremaine v. State

• Decision Date: 14 January 1963
• Docket Number: No. 42475,42475
• Citation: 148 So.2d 517,245 Miss. 512
• Parties: Phil E. TREMAINE v. STATE of Mississippi.
• Court: Mississippi Supreme Court

Page 517

148 So.2d 517

245 Miss. 512

Phil E. TREMAINE v. STATE of Mississippi.

No. 42475.

Supreme Court of Mississippi.

Jan. 14, 1963.

Coleman Clements, Rolling Fork, Howard Dyer, J., Greenville, for appellant.

Joe T. Patterson, Atty. Gen., by G. Garland Lyell, Jr., Asst. Atty. Gen., Jackson, for appellee.

McGEHEE, Chief Justice.

The appellant was indicted, tried, convicted, and sentenced to serve a term of three years in the state penitentiary for an alleged attempt to rape the prosecutrix, in that he 'did then and there lay hold of the body of the said * * *, and did then and there lift and raise up the housecoat (or robe) worn by said * * *, with the felonious intent, design and endeavor, her, the said * * *, violently, knowingly, forcibly and against her will, feloniously to ravish and carnally know.'

On the occasion complained of, at about 2:30 in the afternoon, the appellant is alleged to have gone to a trailer court where a Mrs. Patricia Crowe resided, under the pretense of wanting to locate a person who had some horses for sale. He soon left the trailer court about two miles from Greenville in Washington County, Mississippi, and went about a half mile to the home of the prosecutrix. When he arrived at the home of the prosecutrix, driving a 'salmon-pink 1955 Ford', he inquired of her where he could locate the owner of the horses that were for sale, and requested of her that he be permitted to use her telephone. At the time he arrived at the home of the prosecutrix she was in bed with her three year old daughter, trying to get the child to sleep. Upon hearing the doorbell ring, and being concerned about the child's nap, she noted that it was then 2:30 P.M. She went to the door and found the appellant. She says that he had a piece of what looked like newspaper with a name written on it similar to a piece of paper furnished and described by Mrs. Crowe, and that he made inquiry about the residence of the person whose name was on the paper. The prosecutrix did not know where the person lived but allowed the appellant to use her telephone in her kitchen. He said, 'I am looking for a horse farm that is next to a trailer court.' She invited him to 'come out in the yard, and I think I can show you how to get there.' She and the appellant went out into the yeard and she then said to him, 'Go straight on down this road and I am sure you will run into the place where the horses are'. And he said, 'No, I have already been down there and I have asked and they don't know where this person lives.' She then undertook to give him further instructions as to where he might find the owner of the horses, and then when she went back into her house she says that he followed her, and she asked him 'What do you want?' He then said, 'I am going to get a bucket, my radiator is leaking.' She then said to him, 'Why don't you take my hose and fill your car up with water; I don't even have a bucket.' She then went into the house and closed the door, and since she was expecting her mother-in-law to come to babysit for her, she called her and said, 'I can't seem to get rid of this boy, and I am just a little bit nervous. Hurry on out here.'

She says that when she got through phoning appellant was back at the door and 'I went back to the side door and I said, 'What do you want?' and he said, 'I left my lighter in your kitchen'.' She testified that she then told him, "You did not. I have been in the kitchen, the lighter is not in there', and he just kept on, you know coming up to me and everything, and said he had just paid so much money for it (meaning the lighter) and had to find it; so he went in my kitchen and looked on the stove and in the chair and it was not there.' She says that he then started down the hall to the room where her children were asleep and that she said, 'You can not go back there. You have not even been back there; you could not possibly have left the lighter back there.' She testified that he then asked her if her house was air-conditioned and she told him, yes. And when she was walking from her kitchen into the dining room, he started walking toward her, 'and grabbed my bathrobe and yanked it up, and then I don't know what I did, but he grabbed both of my arms like this (indicating) and--you know--held me like that (indicating); so I said, 'My children and my mother are back there asleep'.' That she then somehow broke away from him and 'went out the back door by the side of my car and he ran around in front of me and I said 'you better go on because I am going to scream and I am going to get your license and report you to the police". And he said, 'If you scream, I will silence you in one blow'. She says that she then saw a car coming and said, 'There comes a car down Bayou Road, and I have already got your vehicle number; so he put his hand over the vehicle inspection number, and I said 'you needn't do that because I already have it memorized'.'

The persons whom she saw coming in a car were a Mr. Haney and Dr. Clare Allen, and, at the trial, they identified the appellant as being the person that they saw leave her house in the 'salmon-pink Ford automobile'.

We think that under the foregoing facts and circumstances there is a strong probability that appellant intended at the time to use force against the prosecutrix, but under the cases hereinafter referred to we do not think there is any proof of any overt act in that behalf.

It will be noted that the prosecutrix did not contend that the appellant undertook to lure her into a bedroom or to otherwise molest her in any manner. She does not contend that he made any lewd or lascivious remark to her or committed any overt act which would amount to an attempt to rape. We...