Wideman v. State
| Decision Date | 16 November 1976 |
| Docket Number | No. 49342,49342 |
| Citation | 339 So.2d 1378 |
| Parties | Jack WIDEMAN v. STATE of Mississippi. |
| Court | Mississippi Supreme Court |
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.
(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 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 criminal cases where there is a straight issue of fact, or a conflict in the facts; juries are impaneled for the very purpose of passing upon such questions of disputed fact, and we do not intend to invade the province and prerogative of the jury.' 159 Miss. at 566, 132 So. at 564. (Emphasis added).' 313 So.2d at 18.
We are of the opinion that the evidence constitutes a question for the jury to determine whether or not the appellant raped the child, and that Assignment No. 1 is not well taken.
II.
Did the trial court err is sustaining the State's objection to appellant's attempt to impeach the prosecutrix by showing that she falsely made a similar accusation in the State of Alabama?
On cross-examination of the prosecutrix, appellant attempted to question her concerning a false accusation of sexual assault she had made against a man in Alabama approximately two years before. Objections to the testimony were sustained by the court, but no offer of the testimony was made by appellant in the absence of the jury, and the record does not indicate what she would have testified to.
Appellant called Mrs. Wideman (mother of the child and wife of the appellant) to the witness stand and thoroughly questioned her about the incident in Alabama, and she testified fully about the matter. Also, in response to questions by appellant, Mrs. Wideman testified about alleged sexual assaults against Rosemary while they lived in the State of Louisiana.
Other states have held that such testimony is competent for the purpose of impeaching the prosecutrix (State v. Izzi, 348 A.2d 371 (R.I.1975); People v. Hurlbert, 166 Cal.App.2d 334, 333 P.2d 82 (1958)), but we find no reported case in Mississippi on the question. Although the point was not preserved because of the failure of appellant to make an offer of proof (Priest v. State, 275 So.2d 79 (Miss.1973)), we are of the opinion that, if the trial court committed error in refusing to admit the testimony, which is not necessary for us to decide in this case, it was harmless error because of the testimony of Mrs. Wideman about the incident.
III.
Did the trial court err in overruling appellant's motion for a mistrial after the State called appellant's wife to the stand and attempted to introduce her testimony?
The State called Mrs. Marcine Wideman, wife of the appellant, to the stand, asked her name, and asked if she was the mother of Rosemary Hamilton, the prosecutrix. Objection was made by appellant and sustained by the court in the following language:
The district attorney then made the following statement:
Appellant contends that prejudicial error was committed in (1) calling the defendant's wife as a witness, and (2) making comments to the effect that she could not testify.
In Outlaw v. State, 208 Miss. 13, 43 So.2d 661 (1949), the district attorney made the following statements to the appellant before questioning him:
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