82 Miss. 784 | Miss. | 1903
delivered the opinion of the court.
Appellant was convicted of rape, and appeals. The first instruction for the state tells the jury that if they believe that the defendant forcibly and against the will of the prosecutrix carnally knew her, then he was guilty as charged, and the jury should so find; and “this is true whether you believe from the evidence that she made any active resistance to his assault upon her or not.” This is tantamount to telling the jury that mere passive resistance, silent objection, on the part of the assaulted female, is sufficient to justify a jury in convicting of rape.
The second instruction for the state, while correct as an abstract proposition of law, was not applicable to the instant case. And the last clause of that instruction was dangerously misleading, in that the jury were authorized to conclude that it was intended by the court to convey the idea that the testimony warranted the belief that the assault in question had been submitted to by prosecutrix “through fear of personal violence, and to avoid the infliction of great personal injury,” whereas the testimony of the prosecutrix does not sustain this view.
The defense placed before the jury was an alibi. Under these circumstances it was prejudicial to appellant’s case to permit the witness, Sallie Dixon, to testify, over repeated objections of defendant, that the prosecutrix (her mother), immediately after the happening of the occurrence, told witness that it was John Anderson (the defendant) who had raped her. It is true that the court did not expressly rule on the objections of the defendant to this testimony, but nevertheless the witness was permitted to repeat the statement four different times, and the district attorney was permitted to base one or more questions upon it before the court sustained the objection and ruled out the statement. The judge should promptly have intervened in a case of this character, so easy to charge, so difficult to defend, and sustained the objection of counsel for defendant, and prevented statements so prejudicial, and so contrary to the rules of evidence, getting before the jury. But, even after the judge had sustained the objection to the.witness’ statement that the prosecutrix had told her who had committed the assault upon her, he afterwards permitted the witness to state when and where it was that the presecutrix claimed that the assault had occurred. This, too, was error. The opinion of the court
For the errors indicated, the case is reversed and remanded.