47 So. 898 | Miss. | 1908
delivered the opinion of the court.
Upon a prosecution for attempt to rape where there was a sharp conflict in the testimony, the court, over the objection of defendant, permitted the grandmother of the prosecutrix to detail the particulars of the affair as narrated to her by the prosecutrix shortly after the alleged assault. This has been repeatedly and emphatically condemned by this court, and this error has invariably resulted in reversal. Ashford v. State, 81 Miss. 414, 33 South. 174; Anderson v. State, 82 Miss. 784, 35 South. 202; Jeffries v. State, 89 Miss. 643, 42 South. 801; Dickey v. State, 86 Miss. 525, 38 South. 776. We sincerely hope that these cases will be carefully re-read by judges and prosecuting attorneys, that there may be an end to this familiar form of reversible error.
While this is sufficient to reverse the case, yet, since the case must be retried, we call attention to another manifest error in the conduct of the trial. This indictment was drawn under section 1049 of the Code of 1906, and charged accurately enough an offense under this statute. There was no averment in the indictment as to the previous chaste character of the female, and yet the court charged, in the fifth instruction given for the state, that the jury might fix the'penalty and the number of years of imprisonment in the penitentiary, if the jury thought proper so to do. The jury, responding to this instruction, actually fixed the
Beversed and remanded.