Opinion
No. 33262.
October 31, 1938.
1. RAPE.
In prosecution for rape of 8-year-old girl, fact that rape was not accomplished by force or violence or against the will of the child was immaterial (Code 1930, sec. 1122).
2. RAPE.
In prosecution for rape of 8-year-old girl, question of defendant's guilt was for jury (Code 1930, sec. 1122).
3. CRIMINAL LAW.
In rape prosecution, error, if any, in introduction of testimony of father of prosecutrix relating to complaint made to him by prosecutrix before introducing testimony of prosecutrix as to the offense in question, was cured by fact that prosecutrix thereafter testified (Code 1930, sec. 1122).
4. WITNESSES.
In prosecution for rape of 8-year-old girl, admitting testimony of girl over objection that she did not possess necessary qualifications of witness, was not error in view of examination of girl as to her qualifications (Code 1930, sec. 1122).
5. RAPE.
In rape prosecution, complaint made by female after she claimed to have been raped is admissible to corroborate her evidence that she had not consented and to sustain her against the charge of recent fabrication of her story (Code 1930, sec. 1122).
6. RAPE.
In prosecution for rape of 8-year-old girl, testimony as to complaint made by girl after she claimed to have been raped was inadmissible to corroborate denial of consent, since the child was without legal capacity to give consent (Code 1930, sec. 1122).
7. RAPE.
In prosecution for rape of 8-year-old girl, testimony of girl's father as to complaint made by her was admissible to sustain girl against charge of fabrication of story (Code 1930, sec. 1122).
8. RAPE.
In rape prosecution, complaint of female after she claimed to have been raped must be voluntarily made to be admissible in evidence (Code 1930, sec. 1122).
9. RAPE.
In rape prosecution, whether complaint which had been made by female after she claimed to have been raped is admissible when obtained by means of questions depends on the relations between the female and the person asking the questions, the circumstances under which they are asked and their character (Code 1930, sec. 1122).
10. RAPE.
In prosecution for rape of 8-year-old child, testimony of complaint which child made to father after she claimed to have been raped which was obtained by father's threat to whip child if she did not tell him what had happened and by cross-examination of child when she was reluctant to tell what had occurred was inadmissible notwithstanding that defendant had requested child not to tell what had occurred since voluntary character of complaint was destroyed (Code 1930, sec. 1122).
11. RAPE.
In prosecution for rape of 8-year-old child, testimony of child's father and another witness to the things they saw at place which was pointed out by child as the place where she claimed the alleged rape occurred was inadmissible since pointing out of place by the child was in effect statement by her to them of the details of the alleged rape, especially where place examined was not shown by testimony of child or any other witness to have been the place where the alleged rape occurred (Code 1930, sec. 1122).
12. RAPE.
In rape prosecution, statement of complaining witness to third person of details of alleged rape is inadmissible (Code 1930, sec. 1122).
APPEAL from the circuit court of Lincoln county; HON. J.F. GUYNES, Judge.
E.C. Barlow, of Brookhaven, for appellant.
The court erred in failing or refusing to comply with defendant's request or objection to the testimony of Vardaman Rollins, in requesting same to be heard by the court out of hearing of the jury to determine admissibility.
Rollins' whole testimony is irrelevant, inadmissible and should have been excluded by the court on the ground that under the testimony of this witness there was no spontaneous outcry from the alleged injured female. Taking the whole statement by the witness Rollins as to the report made to him by his child shows clearly that no outcry was made by the alleged injured female child, as contemplated and required by the law with reference to rape. But her whole statement came as either the result of a threatened whipping or the result of the witness Vardaman Rollins coaxing her and begging her to make the alleged statement, and could only have been made, taking his own statement to be true, either by duress, threats of the whipping or some unknown promise on the part of the witness Rollins, but does not rise to the dignity of the outcry of outraged virtue, as required by law.
Richardson v. State, 56 So. 454, 100 Miss. 514; Baker v. State, 33 So. 716, 32 Miss. 84; Anderson v. State, 35 So. 202, 82 Miss. 784; Jeffries v. State, 42 So. 801, 89 Miss. 643; Simmons v. State, 61 So. 826, 105 Miss. 48; Ashford v. State, 33 So. 174, 81 Miss. 414; Dickey v. State, 38 So. 776, 86 Miss. 525; Frost v. State, 47 So. 898, 94 Miss. 104; Clark v. State, 87 So. 286, 124 Miss. 841; Adams v. State, 47 So. 787; Stewart v. State, 49 So. 178; Spurlock v. State, 130 So. 155; Sanders v. State, 130 So. 112, 158 Miss. 234; Gillis v. State, 120 So. 455, 152 Miss. 551.
In cases of rape is the only place where the rule against hearsay evidence is relaxed and where hearsay evidence permitted with reference to the outraged female making complaint, but that complaint must be a spontaneous complaint and made freely and voluntarily on the part of the injured female and come as a spontaneous outcry of outraged virtue before same is admissible in court. But, in this case, the alleged outcry was carefully picked out of prosecutrix by her father and after he had threatened to whip her if she did not tell him what he wanted to know.
The court erred by overruling the objections of appellant to the testimony of the witness Rollins relative to the description of the alleged scene of the alleged crime.
Jeffries v. State, 42 So. 801, 89 Miss. 643; Simmons v. State, 61 So. 826, 105 Miss. 48; Ashford v. State, 33 So. 174, 81 Miss. 414; Frost v. State, 57 So. 221, 100 Miss. 796.
The court erred in overruling the objection of appellant as to the comparison of the tracks at the alleged scene of the alleged crime and the tracks at the mail box. Such evidence was only a part of the testimony pointed out by the little girl, and could only serve the purpose to inflame the minds of the jury against appellant and prejudice his cause.
Ashford v. State, 33 So. 174, 81 Miss. 414; Dickey v. State, 38 So. 776, 86 Miss. 525.
The court erred by permitting all of the testimony to be placed before the jury as is shown by the record before putting on the prosecutrix. The district attorney undertaking to build his case on secondary evidence and incompetent evidence without placing first the prosecutrix on the stand.
The court erred in overruling the objections made by appellant to the testimony and opinion made by Dr. W.H. Frizell.
The doctor never at one time in his testimony stated that the child had been raped, neither did he give such as his opinion.
Grogan v. State, 118 So. 627, 151 Miss. 652; Fairley v. State, 120 So. 747, 152 Miss. 656.
The court erred by permitting the witness Annie Laura Rollins, the prosecutrix in the case, to testify over the objections of appellant. When asked what she studied at school she stated books, she studied three. When asked about Sunday School she stated she did not go and did not know where one was, then being question as to what she told when she came to court she said "tell what happened," and then in response to the question, "if it was right or wrong for a little girl to tell a story" she said it was right and then after the court's suggestion she said it was wrong. Then, asked if she knew what it meant to swear to tell the truth, the child said that she did not know. Then asked the question "do you know what it is to promise to tell the truth?" her reply "no sir." Then other questions show that the child did not understand the meaning and consequences of an oath and should not have been admitted before the jury, as is shown all of the way through her testimony, and that she was either incompetent as a witness for lack of intelligence or else she was trying to follow a story told to her by others.
Peters v. State, 63 So. 666; Mackey v. State, 103 So. 379; Jackson v. State, 130 So. 729; Trim v. State, 33 So. 718.
All that could be said of the outcry supposed to have been made is that it was forced from the prosecutrix as shown by testimony of her father, Vardaman Rollins, and which clearly puts this case within the rule laid down in the cases of:
Richardson v. State, 56 So. 454; Baker v. State, 33 So. 716, 32 Miss. 84; Anderson v. State, 35 So. 202; Adams v. State, 47 So. 787; Stewart v. State, 49 So. 178; Monroe v. State, 13 So. 884, 71 Miss. 196; Rawls v. State, 62 So. 420, 105 Miss. 406; Harvey v. State, 26 So. 931; Tynes v. State, 29 So. 91; Ashford v. State, 35 So. 569; Joslin v. State, 91 So. 903, 121 Miss. 181; Allen v. State, 45 So. 833; State v. Bradford, 89 So. 767, 126 Miss. 868; Newton v. State, 12 So. 561.
With reference to the testimony of the witness of Oscar McGehee, the court erred in overruling the objections made to this testimony. The witness McGehee stated that the child pointed out the place to him on Sunday, January 30, 1938, and stated that the child and Mr. Rollins were with him at that time when Mr. Rollins had formerly testified that he, his wife and child were the only ones present. The court overruled this objection and made the statement: "He can tell what he saw there at that place, a child or any one else can point out a place and he can tell what he saw. Objection overruled. Bring in the jury." After which the witness McGehee undertakes to describe the place as pointed out to him by the prosecutrix or the child, Annie Laura Rollins. All of which was done over the objection of appellant.
This testimony should not have been admitted over the objection of appellant and is upon its face clearly inadmissible and falls within the rule of Anderson v. State, 35 So. 202; Jeffries v. State, 42 So. 801; Simmons v. State, 61 So. 826; Ashford v. State, 33 So. 174; Dickey v. State, 38 So. 776; Frost v. State, 47 So. 989; Clark v. State, 87 So. 286; Frost v. State, 57 So. 221, 100 Miss. 796; Ashford v. State, 35 So. 569.
The court erred in refusing or overruling appellant's motion for a directed verdict. The only witness connecting appellant with the alleged crime is the incoherent, contradictory, unbelievable and insufficient testimony of the prosecutrix, Annie Laura Rollins, which within itself is far more than sufficient to raise a reasonable doubt. Not only a reasonable doubt, but would raise a grave doubt of appellant's guilt and is wholly insufficient to sustain a verdict of guilty as charged. W.D. Conn, Jr., Assistant Attorney-General, for the State.
The witness Vardaman Rollins was the father of the little girl alleged to have been raped. The appellant and his attorneys wanted all of his testimony to be heard by the trial judge in the absence of the jury before allowing it to go to the jury. The court stated that it would rule on objections as and when they were made. Exception is taken to the testimony of this witness, it appears, for the reason that his testimony concerning what was related to him by the child was not admissible in this case, because her complaint had not been a spontaneous and voluntary one, but had been wrung from her by slow degrees and by threat of punishment.
At the preliminary inquiry it developed that the child had asked her father a question which brought the defendant's name into the conversation. She stated enough to him for him to know that something out of the way had happened. He called on her to tell the whole story and she at first refused because, as she stated, the appellant had told her not to tell what had happened. Threats of punishment brought the balance of the story in detail. Appellant says now that this complaint was not that "spontaneous outcry" that the law requires before evidence of such complaint is admissible. The contention of appellant, as a general rule, would be correct. But we submit it is not so when the subject is a child of immature years. The writer can readily understand why the law would require a woman of mature years to make immediate complaint of a rape, but the same rule cannot and does not apply to a child of tender years. Our court has held that where a small child is acting as a witness it is permissible to ask leading questions.
Turner v. State, 8 S. M. 104; Bruce v. State, 169 Miss. 355, 152 So. 490.
The fact that the child parted with her information unwillingly can have no effect upon the admissibility of her complaint, nor can the fact that it was delayed for some time after her father came home affect its weight.
22 R.C.L. 1217, par. 50; People v. Gage, 62 Mich. 2714, 4 Am. St. Rep. 854.
Appellant complains of the overruling of his objection to the testimony of the father which described the physical appearance of the place where the alleged rape occurred. It had been pointed out to him by his child, who had been the alleged victim of the rape. One who has had a place correctly pointed out to him may testify with reference to its physical attributes, particularly where the time is not too remote. This inspection occurred on the morning after the alleged rape. We submit that the witness had a right, under the circumstances, to thus describe the physical condition at that point.
Cumberland v. State, 110 Miss. 521, 70 So. 695; Huddleston v. State, 134 Miss. 382.
Certain footprints were plainly visible at the scene of the alleged rape, as were certain foot tracks at the mail box of appellant, in front of the Rollins home. There seems to be no rule against this character of testimony. It would have been incompetent for the witness to have stated his conclusion or opinion as to who made the tracks, but that is not the case here.
Herring v. State, 122 Miss. 647, 84 So. 699; Johns v. State, 130 Miss. 803, 95 So. 84.
Neither the court nor the defendant can control the order in which the state shall put on its proof.
Lott v. State, 168 Miss. 710, 152 So. 488; Brown v. State, 88 Miss. 166, 40 So. 737; Bell v. State, 66 Miss. 192, 5 So. 389.
The offense was committed on January 29th. A doctor did not examine the child until the first day of February. He testified with reference to the physical condition of the child as of the day he examined her. He never did state what he thought had produced the injuries, but did state what could cause that character of an injury. This testimony of the physican seems to be in line with the rule in this jurisdiction.
Simmons v. State, 105 Miss. 48, 61 So. 827.
When the little girl was offered as a witness the defendant objected to her testifying until her competency as a witness had been inquired into in the absence of the jury. This court has said that a child is a qualified witness if it has sufficient capacity to observe events and to recollect and communicate them; must have capacity to understand questions and form intelligent answers; and must have a consciousness of duty to speak the truth.
Jackson v. State, 158 Miss. 524, 130 So. 729.
We submit that the preliminary inquiry showed that this child was qualified as a witness.
Mackie v. State, 138 Miss. 740, 103 So. 379; Hays v. State, 126 So. 17; Peters v. State, 106 Miss. 333, 63 So. 666.
The record here presents a case where there is a very decided conflict as between the state and the defendant. Proof for the state undoubtedly shows a rape of this little girl and she has named the appellant as the rapist. The appellant was furnished an alibi, which is supported in whole, or in part, by other witnesses. Under such circumstances, the only issue in the case is the identity of the appellant as the criminal agent. For this we have only the word of the little girl. It was for the jury to decide this question. The only question that can arise with reference to this contention of appellant is whether the court will say that her identification of appellant was so unreasonable and so improbable as to be utterly unworthy of belief; or, as has been sometimes said, her testimony must be repulsive to the reasoning of the ordinary mind. We submit, on the record, that her testimony does not fall within that classification and that this court should not enter a reversal of this conviction upon this ground.
Argued orally by E.C. Barlow, for appellant.
This is an appeal from a conviction for rape. The female alleged to have been raped was only eight years of age, and while it does not appear that the rape was accomplished by force or violence or against the will of the child, that fact is immaterial, she being under the age of consent. Section 1122, Code of 1930. The appellant's defense was an alibi.
Among the appellant's complaints are: (1) The court erred in not granting his request for a directed verdict; (2) the evidence is insufficient to support the verdict; and (3) the court erred in admitting certain evidence for the State hereinafter to be set forth.
The first two assignments of error rest on the claim that the testimony of this eight year old child was wholly unworthy of belief, and is based on the fact that her testimony contains some contradictions, and on the further claim that it indicates that she was not testifying to the actual facts but was simply repeating what she had been told to say by her father and others on the evidence, which will not be set forth. The court below committed no error in refusing to direct a verdict for the appellant, and it will not be necessary for us to decide whether the evidence of this child is of such an unsatisfactory character as to require the setting aside of the verdict and the submission of the case to another jury, for the reason that a new trial will have to be granted because of the erroneous admission of evidence.
It will not be necessary for us to decide whether evidence of this character is inadmissible unless the prosecutrix herself testifies, and any error, if such there be, in introducing this evidence before she testified, was cured by the fact that she did thereafter testify.
This child lives with her father and mother in a rural community, their home being immediately across a public road from the residence of the appellant. On the 29th day of January, 1938, the child's father and mother left her alone at home for the whole of the day, and according to her testimony, the appellant, sometime during the day, came to her home, suggested that she go with him to some woods near-by in order to play with him. This, she did, and while there he had intercourse with her. Before she testified, her father was introduced and stated that he came home about 4:30 in the afternoon, and shortly thereafter the child reported the rape to him. He was not, however, allowed to disclose the name of the alleged rapist. This evidence was objected to on two grounds: (1) It was prematurely offered, the child not then having testified; and (2) that a preliminary examination of the witness, out of the presence of the jury, disclosed that this statement by the child was not voluntarily made but was coerced by means of a threatened whipping, and in answer to questions propounded to her by the witness.
The competency of this child as a witness was challenged on the ground that she did not possess the necessary qualifications therefor. She was fully examined as to her qualifications, and the court below was justified therefrom in holding that she was a competent witness.
A complaint made by a female after she claims to have been raped is admissible in evidence for two reasons: (1) to corroborate her evidence that she had not consented thereto; and (2) to sustain her against the charge of recent fabrication of her story. There was no reason to admit it here in order to corroborate a denial of consent, for the child was without legal capacity to give her consent. It was admissible, however, for the second reason. Such a complaint must be voluntarily made to be admissible in evidence. In some jurisdictions, a complaint obtained by means of questions propounded to the female is inadmissible, but in other jurisdiction, the rule, in which we concur, is that whether the complaint is admissible when obtained by means of questions depends on the relations between the female and the personasking the questions, the circumstances under which they are asked, and their character. 52 C.J. 1065. This rule, with its limitations, is clearly set forth in the following excerpt from Rex v. Osborne, a case of indecent assault, decided in 1905, and reported in 1 K.B. 551, 2 Ann. Cas. 830: "It appeared that Keziah Parkes, along with a younger sister and another girl named Mary Moule, of a similar age, went to a shop kept by the prisoner for the purpose of buying chips. Two of the girls — namely, Moule and the younger sister — went out of the shop on an errand, and during their absence the alleged assault was committed by him on Keziah. She then left the shop, and on her way home met Mary Moule with her sister coming back to the shop. Mary Moule was called at the trial, and was asked when she met Keziah Parkes in the street, `Did you speak to her?' Moule replied `Yes; I asked her why she did not stop for me.' The next question put to the witness was, `What did she say?' Objection was taken for the prisoner that the witness's answer was not admissible in evidence, but the chairman admitted the evidence. The girl's answer was as follows: `Because she did not like the prisoner and would not go near him again, as he unbuttoned her drawers. That was all she said.' The prisoner was convicted, and the point raised for our decision is whether this ruling was right. It was contended for the prisoner that the evidence was inadmissible — first, because the answer made by the girl was not a complaint, but a statement or conversation, having been made in answer to a question; and, secondly, because Keziah Parkes was under the age of thirteen, her consent was not material to the charge. As to the first point, the case of Reg. v. Merry, 19 Cox C.C. 442, was quoted. In that case a question had been put to a girl of nine years old by her mother in a case of indecent assault, and the learned judge ruled that, as the proposed evidence was a statement made in answer to a question, it was a conversation and not a complaint, and he declined to allow it to be given in evidence. It does not appear, however, from the report what the question was that was put to the girl. It appears to us that the mere fact that the statement is made in answer to a question in such cases is not of itself sufficient to make it inadmissible as a complaint. Questions of a suggestive or leading character will, indeed, have that effect, and will render it inadmissible; but a question such as this, put by the mother or other person, `What is the matter?' or `Why are you crying?' will not do so. These are natural questions which a person in charge will be likely to put; on the other hand, if she were asked, `Did So-and-so' (naming the prisoner) `assault you?' `Did he do this and that to you?' then the result would be different, and the statement ought to be rejected."
In State v. Ellison, 19 N.M. 428, 144 P. 10, a child that had been raped in a room of a hotel immediately thereafter ran to a room occupied by herself and a sister and locked the door. In response to a question from her sister as to why she locked the door, she told her what had occurred. The evidence of this complaint was held admissible.
What occurred when the child told her father of the alleged rape was this: After her father returned home on the day of the alleged rape, he asked the child if anyone had been there that day, to which she replied: "Mr. Jack (the appellant) come." What thereafter occurred can best be stated in the witness's own language: "A. So, I went ahead with my work and never thought of anything and after a while, she said, `Papa, reckon what Mr. Jack toted that box of salve in his pocket for?' I didn't think anything about it. I said, `I don't know, Hun, I reckon he had a sore hand and put it in his pocket' and I reckon in 30 minutes, she ask me again, said, `Papa what does Mr. Jack carry that salve around in his pocket for?' I said, `I don't know, Hun, what makes you ask me about the salve, how do you know he has any salve?' She said, `he showed it to me.' I said, `how come him showing you the salve?' She said, `well, he took me down in the wood to play' and that set me on fire. I begin to think. I said, `what kind of playing an old man like that, what kind of playing you call yourself doing?' She said, `he said not to tell it.' I says, `I want you to tell me what it was.' I says, `what kind of playing?' It embarrassed her or something, looked like, so I says, `come on and tell me.' I said, `if you don't tell me what kind of playing you was doing, I am going to whip you' and it looked like it scared her and I said, `no, Hun, I won't whip my baby.' I said, `come on and tell me what kind of playing you done and how come him to show you the salve and — ' Tell it like it is?
"Q. Tell it all. A. And she said, `he took me by the hand at the mail box and led me down in the woods' and I says, `well, what was you doing down there?" She told me that he set down and took her in his lap and put some slave on his fingers and stuck them in her down here (indicating) I said, `did it hurt?' She said, `Yes, sir.' I said, `what was it, tell me the rest.' She said `he told me not to tell it.' I said, `come on and tell me, I want to know everything he done and said.' She didn't know what to do or say, or else she didn't tell me. I said, `did he stick anything else in you?' and she said, `yes, sir.' I said, `what was it?' That made the third time, she said he told her not to tell. I said, `come on and tell me, there isn't nobody here but me, tell it.' I said, `did he stick something in you down here on him?' She said, `Yes, sir.' I ask her, `did it hurt?' and she said, `no, sir, it didn't go no more than that (indicating) deep.'"
It will not be necessary for us to determine whether the evidence of this witness was inadmissible solely for the reason that he obtained the information as to the alleged rape by threatening to whip this child, for when that threat was followed by the cross-examination of the child, which went beyond what was permissible, even though the appellant had requested the child not to tell what had occurred, the voluntary character of her complaint was destroyed. The evidence therefore should not have been admitted. The witness, of course, had the right to obtain this information from his daughter, and when his suspicions were aroused as to what had occurred, it became his duty to ascertain from her in any reasonable manner what had in fact occurred. We are not here concerned with that, but only with whether the method he pursued to obtain the information destroyed its voluntary character within the rule governing its admissibility in evidence.
This witness, the child's father, and Oscar McGehee, testified, over the appellant's objection, that they, accompanied by the child, went into the near-by woods, and (it is clear from their testimony) she pointed out to them the place where she claimed the alleged rape occurred. They examined the ground at this place, and testified to things they there saw, which, if true, indicated that something like what the child said had occurred there. There was no evidence that either of these witnesses knew of their own knowledge that the place they examined was the place of the alleged rape, nor was there any other evidence identifying the place as such. This evidence was inadmissible for two reasons: (1) The place was pointed out to the witnesses by the child, which, in effect, was a statement by her to them of the details of the alleged rape, and such evidence, under all the authorities, is inadmissible; Frost v. State, 100 Miss. 796, 57 So. 221; and (2) the place examined by them was not shown by the testimony of the child or by any other witness to have been the place where the alleged rape occurred. Cumberland v. State, 110 Miss. 521, 70 So. 695; Huddleston v. State, 134 Miss. 382, 98 So. 839.
It will not be necessary for us to consider the other assignments of error, for the matters therein complained of are of such character as are not likely to occur again, and the others present no reversible error, if error at all.
Reversed and remanded.