Dickey v. State

| Miss. | Apr 15, 1905

Oox, <T.,

delivered the opinion of the court.

Appellant, a white man, was convicted of rape. The victim was a little negro girl. According to her father’s testimony, she was ten .years and about nine months old when the offense was committed; but, from certain circumstances testified to in the case, she may have been as much as twelve or thirteen. Every element of the crime is established fully — indeed, is confessed — except the want of consent of the prosecutrix. Upon this issue the only direct evidence is the testimony of the prose-cutrix and the accused.

It is insisted that the case should be reversed because testimony was admitted to the effect that the little girl (as she is styled throughout the record by both attorneys and witnesses), in her complaint to her mother immediately upon her return home after the outrage upon her, said: “Mr. Dickey hurt me.” It is competent in cases of this kind to permit the introduction of testimony to show that the prosecutrix made complaint soon after the wrong claimed to have been done her, but it is not competent to permit the particulars of her complaint to be shown to the jury, and especially is it error to permit the jury to be informed as to whom she charged with the crime. But in this case, looking back upon the trial as a completed whole and considering everything in it, we can see that the defendant was in no wise prejudiced by the erroneous admission of the testimony complained of. There is no question of identity here, nor of the commission of the act which the state denounces in this ease as rape, but which the defendant, in effect, maintains was, in law, the innocent gratification of a natural appetite. Everything charged against the defendant by the child in her statement to her mother, and more, was admitted by defendant on the witness stand; nor can it be claimed that he was forced by the admission of the testimony in question to have waived his privilege and become a witness in his own behalf. The testimony of the prosecutrix before the jury made this imperatively necessary.

■ It' was not error to allow the introduction of evidence to show the age of the child. While it is true that there is no legal presumption that a female child slightly heyond ten years of. age cannot and will not consent to her defilement, there is a strong presumption of fact, known to all men, that girls of such tender age will not so readily yield themselves to the embrace of the lustful and brutish as those who are more mature; and this presumption the state is fairly entitled to have the benefit of in all prosecutions for rape of children of tender years.

It was not error to admit the letter written by the defendant and addressed to Dr. Henderson, although it was never delivered to him. This letter is manifestly an attempt to fabricate evidence and suborn perjury. It was clearly admissible. Says a recent great writer on evidence: “It has always been understood — the inference, indeed, is one of the simplest in human experience1 — that a party’s falsehood or other frauds in the preparation and presentation of his cause, his fabrication or suppression of evidence by bribery or spoliation, and all similar conduct, is receivable against him as an indication of his consciousness that his case is a weak or unfounded one, and from that consciousness may be inferred the fact itself of the cause’s lack of truth and merit. The inference thus does not apply itself necessarily to any specific fact in the cause, but operates indefinitely, though strongly,, against the whole mass of alleged facts constituting his cause.” Wigmore on Evidence, sec. 278, After giving examples of the matters within the principle, the author proceeds: “As the general principle applies in common to all these forms of fraud, it is not necessary, nor is it usually possible, to discriminate the precedents that apply it in one or another form. Roughly classifying them, they admit all forms of personal falsification by the party in the course of the litigation — the fabrication or manufacture of evidence by forgery, bribery, subornation, and the like; the suppression of evidence by intimidation, eloignment, or concealment of' witnesses or material objects, or by the destruction or spoliation of documents or other material objects.” The letter was within the principle above announced, and was competent evidence for the state.

It was proper to permit the state to show the defendant’s disappearance from his home immediately after the commission of the crime, and the search that was instituted for him, as tending to show flight.

It is clear that the defendant was not prejudiced by the presence of the bailiffs in the jury room, by the separation of one of the jurors from his fellows for a few moments while under the observation of the trial judge, nor by the fact that the jury were allowed to occupy the courtroom as a sleeping apartment at night.

There was no error in refusing instructions for the defendant, and no error in the action of the court in modifying certain instructions for defendant. The law of the case was fully announced, and with great liberality towards the defendant; and the jury could not possibly have been misled as to the law, to the prejudice of defendant.

We are ashed to reverse this case upon the ground that appellant is not guilty, and the jury should have so found, in view of all the competent evidence in the case. We are aware that convictions of this detestable crime, so easy to charge and so hard to defend, should always be scrutinized with caution. But while this is true, we will not be astute to discover pretexts for reversal where there was competent evidence before the jury, which, if believed, would be sufficient to uphold a verdict of guilty. While we desire to protect the citizen accused of crime from unwarranted conviction, we are not less concerned to protect from violence and outrage the womanhood of the state. The safety of all women, the keeping free from pollution of the virginal purity of our daughters, and the preservation of the sanctity of our homes, depend upon the certainty and promptness with which crimes of this character shall be visited with condign punishment, it matters not how humble and friendless the victim nor what her race or color. The issue of fact in this case was sharp and clear. If the jury, having before them the prosecutrix and the accused, seeing and hearing them, and noting their appearance and demeanor, preferred to believe the little, ignorant negro girl, rather than a white man who by his own confession was guilty of an execrable moral offense, shocking to an enlightened conscience, which ought to be denounced as a crime by the law, without regard to the consent of the victim, we will not say that they were not warranted in so doing. Their verdict received the sanction of a just and enlightened trial judge, and will not be disturbed by us.

We take this occasion to express our opinion concerning the wisdom and justice of the conclusive presumption of law that a female child over the age of ten years has sufficient intelligence and discretion to consent to the surrender of her virtue and the defilement of her person. Every child under fourteen is presumed by the law to be incapax doli — that is, mentally incapable of entertaining a criminal intent — because presumed not to have developed sufficient intelligence and moral perception to distinguish between right and wrong and to comprehend the consequences of his act. And hence no child under fourteen can be punished for any crime except upon proof of exceptional intelligence and maturity. And yet, while this is true and while it is further true that a female child less than ten years old, by so much as a day, is conclusively presumed incapable of consenting to sexual commerce, a female child over ten, by so much as a day, is conclusively presumed capable of consenting to the sacrifice of her virginity, her social undoing, and her moral ruin. This, we suppose, by analogy, is because she is presumed to have sufficient intelligence and moral discrimination to distinguish between right and wrong and to comprehend the ruinous consequences of the act. This presumption is inconsistent with the presumption of incapacity to commit crime, and in irreconcilable conflict with the truth, and is an insult to our intelligence. We all know that the overwhelming majority of the girls of this state under fourteen years of age, in their ignorance and innocence, do not and cannot have any adequate understanding of' sexual commerce, nor any comprehension of the ruinous consequences of a lapse from virtue. The legal presumption which declares that every female over ten years of age is fully capable of giving intelligent assent to her own ruin, and which, therefore, makes her fair play for any lecherous scoundrel who can impose, upon her innocence and credulity, is a reproach to the law, a disgrace to a Christian state, and a blot upon the -civilization of the age. It is a relic of barbarism which should be abolished. The girls of the state under fourteen should be protected by a legal presumption that they are incapable of consenting to their own shame. This presumption might be made either prima facie or conclusive. If prima facie, it might be allowed to be rebutted upon proof of exceptional intelligence and maturity. If conclusive, the penalty might, in the discretion of the trial court, be made either death, imprisonment for life, or imprisonment for a term. In this way, without injustice to any one, our daughters could be protected by the law until such time as they could reasonably be presumed to have sufficient discretion to protect themselves against the machinations of the seducer.

Affirmed.