Wideman v. State, No. 49342

• Court: United States State Supreme Court of Mississippi
• Writing for the Court: Before GILLESPIE; LEE
• Citation: 339 So.2d 1378
• Docket Number: No. 49342
• Decision Date: 16 November 1976
• Parties: Jack WIDEMAN v. STATE of Mississippi.

Page 1378

339 So.2d 1378 Jack WIDEMAN
v.
STATE of Mississippi. No. 49342. Supreme Court of Mississippi. Nov. 16, 1976.

Bernard Gautier, Charles Parlin, Pascagoula, for appellant.

A. F. Summer, Atty. Gen. by Vera Madel Speakes, Sp. Asst. Atty. Gen., Jackson, for appellee.

Before GILLESPIE, C.J., and ROBERTSON and LEE, JJ.

LEE, Justice, for the Court:

Jack Wideman was convicted of raping his twelve-year-old stepchild, Rosemary Hamilton, and was sentenced to serve a term of fifteen (15) years in the state penitentiary by the Circuit Court of Jackson County. On this appeal, he assigns the following errors committed by the trial court:

(1) The verdict of the jury is against the overwhelming weight of the evidence.

Page 1379

(2) The trial court erred in sustaining the State's objection to appellant's attempt to impeach the prosecutrix by showing that she falsely made similar accusations in the State of Alabama.

(3) The trial court erred in overruling appellant's motion for a mistrial after the State called appellant's wife to the witness stand and attempted to introduce testimony by her.

(4) The trial court erred in overruling appellant's motion for a mistrial because of prejudicial remarks made by the prosecuting attorney.

About 1:45 a.m. on the night of July 31, 1975, appellant went to the home of his brother where his wife and Rosemary were staying, and told them he wanted Rosemary to go with him to the police station for the purpose of explaining an accusation made by a neighbor that the child had stolen ten dollars ($10.00) from the neighbor. An argument ensued, and the brother made the entire family leave his home. Appellant, his wife and Rosemary left in appellant's car. After a while, the car stopped, appellant said it was out of gas, he removed an empty gas can from the car, and he and Rosemary started off on foot seeking gas. Mrs. Wideman remained in the vehicle. Rosemary testified that appellant took her to the home of his friend, Ray Solorzano, that he threatened her, that she was afraid of him and cried, that he forced her to have sexual relations with him, and that he then forced her to have sexual relations with Solorzano. In the meantime, appellant's wife started the car and drove around until she found appellant and Rosemary about 4:00 a.m. They were walking on the street near Solorzano's home.

Rosemary told her mother what had happened; she was taken to the police station, and then to the hospital where Dr. Allen examined her. He found mobile sperm in her vagina, indicating that she had intercourse within three hours previous to the examination. Dr. Allen also found that she had bruises on her left breast and a vaginal irritation. It was his opinion that Rosemary had engaged in sexual intercourse, but he was unable to determine whether with one or more persons.

Appellant denied that they had gone to the home of Solorzano, and denied that he had sexual relations with her. He stated that he was drunk, that he passed out on the front porch of a house, and that about two hours later Rosemary awakened him, appearing to be upset. Officer East testified that he saw appellant and Rosemary walking down the street in the vicinity of Solorzano's house, that he saw appellant again about 4:00 a.m. and that appellant was drinking, but was not drunk.

I.

Was the verdict of the jury against the overwhelming weight of the evidence?

Appellant principally urges on this assignment that the prosecutrix did not know the meaning of 'intercourse' and that there was no penetration of her private parts. Rosemary testified that appellant made her take off her clothes, then he took off his clothes and 'after he got done' he threatened her; that he forced her to have intercourse with him and that she understood what the word 'intercourse' meant. She testified that appellant raped her and that Solorzano raped her.

The testimony of the prosecutrix was corroborated in the following respects:

(1) Dr. Allen testified that he found mobile spermatozoa in her vaginal tract, which indicated that she had sexual intercourse within the previous three hours.

(2) The doctor found bruises on her left breast and irritation of her vagina.

(3) Appellant and Rosemary left the car and went toward the Oasis Bar and toward Solorzano's house.

(4) Officer East saw appellant and Rosemary in the vicinity of Solorzano's house after they had left the car.

In Lang v. State, 230 Miss. 147, 87 So.2d 265 (1956), the prosecutrix, a twenty-year-old married woman, described the act as 'after he got through' and the Court said: 'It is not indispensable that the penetration

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be proved by the testimony of the prosecutrix; it may be established by circumstantial evidence.' 230 Miss. at 158, 87 So.2d at 268.

In Lee v. State, 242 Miss. 97, 134 So.2d 145 (1961), the Court said:

'The appellant was indicted under Section 2358, Miss. Code of 1942, Rec., for forcibly ravishing the prosecutrix; and this Court has held in numerous cases that in a prosecution for rape under that statute the victim's evidence is sufficient to sustain a conviction without corroboration, if it is consistent with the surrounding circumstances and conditions shown by the evidence.' 242 Miss. at 106, 134 So.2d at 149.

This Court affirmed a conviction of rape in Thornton v. State, 313 So.2d 16 (Miss.1975), and stated:

'The facts being in dispute, it was the duty and responsibility of the jury to decide which witnesses to believe, and how much of each witness's testimony to believe, and what weight should be given to each witness's testimony.

In Evans v. State, 159 Miss. 561, 132 So. 563 (1931), this Court said:

'We invite the attention of the bar to the fact that we do not reverse...