Brown v. State

72 Miss. 997 | Miss. | 1895

Whitfield, J.,

delivered the opinion of the court.

There was no error-in the refusal of the instructions numbered 17, 18, 19 and 20, asked by the appellant, and none in making the modifications made in instructions numbered 2, 5, 11 and 14. Instructions numbered 1 and 2, for the state, fall within the condemnation of Burt v. State, ante, 408; and the words “beyond all reasonable doubt,’’ should appear in the fourth instruotiou given for the state, before the words, “ that defendant obtained carnal knowledge of her person,” etc. The first instruction for the state assumes, also, that the " female ’ ’ has been ‘' raped, ’ ’ and that ' ' the crime was committed. ’' The word ‘ ‘ prosecutrix ’ ’ should be substituted for the words ' ' female raped,' ’ and the proper correction made as to the other matter. It is due to the learned circuit judge who tried this case below, to state that the case of Burt v. State, supra, had’ not been decided when this case was tried below. There is no error in the third instruction for the state. The error assigned as to the remarks of the district attorney is untenable. There must be reasonable latitude allowed the state’s representative in presenting the case. He should coniine himself to legitimate argument within the record ; but while some of the expressions used might have been limited, a too nice criticism must not be indulged along this line.

There was no error in ' ' not permitting the appellant to prove by the witness, Whitten, the conversation had by him with the state’s witness, Sallie Boyce, in reference to buying shoes for her, a day or two before the difficulty. ’' It was irrelevant to the issrie.

As to the offer to prove by Ike Murphy that the prosecutrix had contracted a venereal “disease in Panola county, seven years before the trial, by promiscuous sexual intercovirse, ” and that the prosecutrix had had " other separate acts of sexual intercourse with other parties named, running on down to the time of the trial,” we observe, first, that the former was incompetent, and that as to the latter the witness, Murphy, had been allowed to testify that the prosecutrix was a “common prostitute; ” that that was her general character, and she was regarded as “ common property; ” and the testimony referred to seems to have been offered not so much to show isolated “separate acts” as a continuous, uninterrupted course of common prostitution; and while, in'this view, the testimony was competent, under the authority of Woods v. People, 55 N Y., 515; Rex. v. Clay, 5 Cox Cr..Cas., 146; and Brennan v. People, 7 Hun (N. Y.), 171 — “it was much more than," says the court in 55 N. Y., “an offer of proof of particular acts of lewdness.” Regarded as an offer to show that the prosecutrix had had merely ‘' separate acts ’ ’ of sexual intercourse with others, and to show this by the testimony of independent witnesses, it is to be observed that the prosecutrix had not, as is usually the case, been first asked, on cross-examination, whether she had not had such connection with persons other than the defendant. This character of impeaching testimony, it is true, is resorted to to show that, being á woman of unchaste character, the prosecutrix would be more likely to consent to the act of intercourse under investigation than a chaste woman, rather than as an assault generally upon her credibility; but it is the general practice to first ask the questions on the cross-examination of the prosecutrix. In State v. Johnson, 28 Vt., 512, the court says: “ If,, in proof of the bad character of the prosecutrix, the respondent relies upon witnesses introduced by him for that purpose, he will be confined to the proof of her general character, and will not be permitted to prove specific facts, as it is not to be presumed that the state can be prepared to meet or explain those particular, events in her life. But where the prosecutrix is a witness, and the inquiry is directed to her on cross-examination, that reason does not exist, nor does the principle apply, as the presumption in such case arises that, in relation to such specific, facts, she is able to give satisfactory explanations, if such explanations can be made. When the general rule is given in the authorities that evidence of particular facts is not admissible, reference is had to cases where witnesses for that purpose are introduced by the defendant, and not to cases where the prosecutrix is a witness on the part of the state, and the inquiry is directed to her personally on her cross-examination.” And though this distinction is called by Bennett, J., in his dissenting opinion, “judicial trifling,” it must be confessed it runs through the cases, whether sound in principle or not, which we doubt. We note the distinction, in the light of the authorities because the questions were not asked of prosecutrix on cross-examination. We call special attention both to the opinion of the court and the dissenting opinion in this case, as presenting the best reasoning we have found on the subject for and against the admission of such testimony, remarking that State v. Jefferson, 6 Ired., 305, relied on in the dissenting opinion, was afterwards overruled in State v. Murray, 63 N. C., 31, and State v. Freeman, 100 Ib., 429. On the precise point, however, there is some conflict in the authorities-. The following authorities hold that it is not competent to show the ‘‘ separate acts of intercourse with other parties '' by independent witnesses: McQuirk v. State, 84 Ala., 435; People v. McLean, 71 Mich., 309; 2 Bish. Cr. Pro., 965, 966 (with authorities giving the reason that “ such proof would not show her readiness to yield to him,'’ the particular defendant); 2 Whart. Cr. Law, §§ 1151, 1152; Com. v. IIarris, 131 Mass., 336; and many others. Mr. Wharton cites, as holding that such testimony is competent, People v. Abbott, 19 Wend., 192, in which case the doctrine is most emphatically laid down by Judge Co wen, and this holding of Judge Cowen is approved in Brennan v. People, 7 Hun, 171, and in State v. Johnson, 28 Vt., 512, and is .pronounced “unanswerable” in Titus v. State, 7 Bax. (Tenn.), 132. It is very clearly pointed out in State v. Johnson, supra, that the text of 3 Greenl., § 214, is based mainly on Rex v. Hodgson (decided in 1812) Russ. & R. C. C., 211 (3 Car. & P. 590, note a), and Rex v. Clarke (decided in 1812), 2 Starkie, 241, and that the decision in the first case “was upon the mere question of privilege,” and that in the second the prosecutrix had not been asked, on cross-exami nation, as to specific acts with specific persons other than the defendant ; and it is further insisted that in England these cases have been overruled. It is significant, too, that in the fifteenth edition of 3 Greenleaf (§ 214, note a,), it is said the other view ‘‘has received favor in some states,” and one of Gfreenleaf’s authorities is the overruled case, State v. Jefferson, 6 Ired., 305. As to the privilege of the prosecutrix to decline to answer on cross-examination, it is held in Titus v. State, supra, that the modern authorities settle the question that a witness can claim no such privilege, in accordance with what was the view of Mr. Starkie in his work on Evidence. Shars. Starkie Ev., p. 1871. If, as said by Mr. Greenleaf in volume 1, § 584, “ the rules of evidence are founded in the philosophy of nature, in the truths of history, and in the experience of 'common life,' ’ it is very difficult, on any sound reasoning, to uphold the exclusion of such testimony in this particular character of crime. “ It would be absurd, and shock our sense of truth, for any man to affirm,' - says Judge Freeman in Tit ax Case, tmpra, ‘‘that there was not a much greater probability in favor of the proposition that a common prostitute had yielded her assent to sexual intercourse, than in case of the virgin of uncontaminated virtue” — Messalina rather than Lucretia, as Judge Cowen puts it. There is a very full review of the authorities in Judge Cowen’s opinion, and in Judge Isham's opinion a fuller one still, and they have very great force in them; but Judge Cowen’s views are expressly overruled in People v. Jackson, 3 Parker, Cr. R. (N.Y.), 391, and the view is clearly against the decided weight of authority, though it may be the better view on principle. See the note to Smith v. State, 80 Am. Dec., 368, especially authorities at top of page 369, where it is said that, “ even admitting the soundness of the genera] rule, it should not be applied where the prosecutrix is young, inexperienced, has lived a secluded life, and where her proclivities can be shown, and by proofs of specific acts of lewdness,” citing People v. Benson, 6 Cal., 221, and Shirwin v. People, 69 Ill., 55—both exceptional cases, whose peculiar.facts are to be carefully looked to in referring to these cases; and this remark applies also to Rogers v. People, 34 Mich., 345, and Bedgood v. State, 115 Ind., 275, also exceptional cases. ' Many authorities are cited in 19 Am. & Eng. Ene. L., p. 962, the text saying -merely that, “ according to the weight of authority, her character cannot be shown by proof of particular acts of unchastity with third persons. ’ ’ Regarding the proffered testimony, however, from the statement in the bill of exceptions before quoted, as offered rather with the purpose of showing that the prosecutrix was a common prostitute than of showing isolated separate acts, we do not deem it necessary definitely to pass now on this exact point, reserving its decision for a case calling for its precise adjudication. In this view of the purpose of the testimony, the action of the court, while erroneous, does not present reversible error, for the fact that she was a prostitute had been otherwise testified to.

There was no error in allowing proof as to the tying, etc. This was part of the res geske.

It was manifest error to permit the witness, Whitten, to state that he had heard that the defendant had killed a man at Lake View some twelve years before this trial. Kearney v. State, 68 Miss., 233.

There was no error in overruling the motion in arrest of judgment.

For errors indicated, the judgment is

Reversed and cause remanded for a new trial.