Yarbrough v. State

• Decision Date: 10 November 1947
• Docket Number: 36565.
• Court: Mississippi Supreme Court
• Parties: YARBROUGH v. STATE.

32 So.2d 436

202 Miss. 820

YARBROUGH v. STATE.

No. 36565.

Supreme Court of Mississippi

November 10, 1947

Deavours & Hilbun, of Laurel, for appellant.

Greek L. Rice, Atty. Gen., and Geo. H. Ethridge Asst. Atty. Gen., for appellee.

ROBERDS, Justice.

The jury convicted Yarbrough of the rape of Billie Wee Ponder, a Negro girl, five years and two months old, and sentenced him to the state penitentiary for life. He appeals.

He first contends that the evidence of his guilt is not sufficient to support the verdict of the jury. This necessitates a review of the evidence.

The father of the child is a minister, has a wife and eight children and lives in the southern part of Laurel Mississippi, in a section known as Queenstown, largely inhabited by members of the Negro race. On the evening of December 6, 1946, about sundown or a little later, the mother sent Billie Wee on an errand to a nearby shop. Some time having elapsed without her return, the parents instituted a general search for her. While the search was in progress and near the hour of seven o'clock the child appeared at the back of her home, emerging from a wooded area. She was crying and excited. She told her parents a white man carried her into the woods and attacked her, and tried to show the place of the attack in the woods. She was examined by a local doctor, whose qualifications were admitted, about 10:30 that night. He testified she was very much excited and had 'blood on both lower legs, both lower extremities, and on the abdomen'; that the blood was coming from the vagina and rectum. He said: 'On examination of these parts, the seal of the virtue, known as the hymen, was torn, mutilated stretched for beyond the elasticity of the vaginal orifice or opening.' He explained that the hymen, in medical terms, means the maidenhead in layman understanding. He further testified: 'On examination of the rectum, I found the opening was torn and mutilated. It looked as if this cavity had been stretched beyond its normal boundary. Further examination of the parts was not advisable, in view of the extreme pain and bleeding.' He said she was bleeding 'profusely' from the vagina and rectum. The child was in bed and under the care of this doctor for three weeks.

Yarbrough first appears in the Queenstown neighborhood about 5:40 that evening. He was at the store of F. A. Hendry to get a check, the property of another, which was in the possession of Hendry. Yarbrough had an order for the check and obtained its possession. He was drinking. Hendry's store was about two-thirds of a block from the Ponder home. Mr. Luther Hill next saw Yarbrough in the same neighborhood between sundown and dark, walking towards the Ponder home. Two boys, eleven and twelve years of age, playing marbles near the walkway, saw him pass, leading the child by the hand. These boys knew her well. They lived within a few yards of her. As Yarbrough approached the woods, he picked her up and went into the woods with her. One of the boys said he started running as he entered the woods.

The child testified. We will discuss the competency of her evidence later. She said, in the absence of the jury, that Yarbrough carried her into the woods, laid her down, got on top of her and hurt her and caused her to bleed. She pointed out Yarbrough as the man. In the presence of the jury, she testified that Yarbrough carried her into the woods, laid her down, got on top of her, and she identified and pointed out Yarbrough in the courtroom.

We next find Yarbrough at the cafe of Mrs. Nell Tibbs, some three blocks from the Ponder home. She testified this was between six and seven o'clock, perhaps after 6:30. She described his condition in these words: 'Well, he was so bloody and his hands were dirty and bloody looking, and his face was dirty, and his hair all pushed up, so I just wouldn't serve him anything. I asked him to get out.' Two taxi drivers saw him between 7:30 and 8:30 and said there was blood on his hands and clothes. He was going from place to place trying to get the check cashed. Finally, some time between nine and ten o'clock, after he had cashed the check, he was driven in a taxi to a cafe being operated by Mrs. Edna Bishop on Highway 11, about a mile and a half north of Laurel. The taxi driver testified that as Yarbrough entered his taxi, he saw signs indicating Yarbrough had just bathed his hands and face. The crime had been reported to the officers. The two boys had given them a description of the man who had carried the child into the woods, dressed, as they said, in khaki clothes, and the officers had learned from the various persons who subsequently saw him that Yarbrough was so dressed and was in the vicinity of the crime about the time it was committed. They had also gotten information he was at the Bishop Cafe. They went to that cafe about 10:30. Yarbrough was there. He was sitting at the eating counter, with his hat pulled over his face. On recognizing the officers, he tried to climb over the counter and run away. They caught him by the ankle and pulled him back. One of the officers testified: 'As we come out he made the statement that he already had his route picked out; if he had seen us in time we wouldn't have got him whenever he went out at the back.' At police headquarters his clothes were removed. The pants had blood in front where they open. His shirt was torn and had blood 'on the front and around the tail.' His shorts had blood 'on the front part.' The officers swore they knew from observation that it was blood, but the chief of police took the precaution to have a chemical analysis made, which showed it to be human blood. The garments were introduced in evidence. The two marble-playing boys were brought to the city hall that night, and immediately identified Yarbrough as the man who was leading the child. They pointed him out among a number of persons present, one of the others being also dressed in khaki.

Yarbrough testified. He said he went to the South Side Inn in Laurel around eleven to twelve o'clock that day; was drinking considerably and remained there until five or five thirty that evening. He admitted being at Hendry's, getting the check, seeing Mr. Luther Hill, and being at the store of Mrs. Tibbs. He took himself from the Queenstown neighborhood by saying that after he left Mrs. Tibbs two colored boys carried him into the city. He did not give their names nor say how they carried him. However, it is noted that he does not claim to have left the neighborhood until after he visited the Tibbs Store, when, according to her testimony, his hands, face and clothing were bloody and dirty. The great condemning fact was the blood upon his hands and clothing. Yarbrough, like Macbeth, might well have asked 'Will all great Neptune's ocean wash this blood from my hand?', and exclaimed

'I am in blood

'Stepp'd in so far that, should I wade no more,

'Returning were as tedious as go o'er.'

He tried to explain it away. He denied that he had any blood upon his person or clothing when he was in the Tibbs Cafe. He said Mrs. Tibbs was wrong about that. He then said the blood was the result of a fight. He said when he arrived at the Bishop Cafe that Mr. Bishop, considering his conduct towards Mrs. Bishop insulting, struck him in the face with his fist knocking him down, causing a split in his lip and his nose to bleed. That was sometime between nine and ten o'clock. That, of course, does not explain the blood which was upon him before that time as given in the evidence of Mrs. Tibbs and the taxi drivers. Nor could it have any bearing upon the undisputed fact that when he thereafter arrived at police headquarters there was blood upon the tail of his shirt in front and upon the front opening of his shorts. He also said that after he was...