*1 Lee v. State. Suggestion 14,
(In April Banc. Feb. 1947. of Error Overruled
1947.) (2d) 36278.] 211. [29 So. No. *2 (2d) 74. So.
[30 appellant. Will Wells, S. Jackson, *4 Arrington, Attorney Rice, L R. O. General, Greek . Attorney appellee. General, Assistant *5 Young Jackson & Wells, Will S. all Jackson, appellant, suggestion on of error. *7 opinion
Alexander, J., the of the court. delivered appellant аn assault with intent The was convicted of previously chaste under character, a female of ravish assigned which we 2361. The errors Code Section (1) the the failure of State to establish shall discuss arе: (2) by corpus a the admission o’f confession delicti; the (4) testimony; (3) of certain accused; admission reopen granting its motion to case after both State’s (5) wrong under the sentence rested; had sides statute. by following were testified to witnesses for facts
The was awakened severe blows The victim the State. evidently empty upon from an soft drink bottle. her head open a been forced and shе saw had The screen window escaping. Neighbors in the act of saw at the window man leaving premises time at the of the assault and and :a man nearby appellant thereafter arrested soоn the officers *8 panting as if he had been and out breath him found part running the lower of his with his shoes and and wet. .trousers jail placed the
Appellant in and on afternoon of was by interrogated following dаy to he was two officers the whom he confessed that it was he who had in broken the room and struck the victim three times while she was asleep in bed; that he had watched and waited outside prepаred while she bed, and that his intent was to question any ravish. There is no whether coercion was by contrary, used these officers, but, on the defendant they explained testified had “been nice to him” and had аgainst that his statement would be used him that and wholly voluntary. such statement would be of the confession had never been The details
suggested or known any one other than the defendant. he When was re- quested sign tо the statement after its writ- reduction to ing, stating during morning he refused to do so that the presence jailer two in officers the room and of the “had thereupon him treated kind of bad.” The interview was signature uрon. closed and his was not insisted during morning defendant testified that the .The re- plain brought to, ferred two men clothes had him to the jailer officeof the and that demanded he confess crime, the warning and him struck twice with the that if he went mighty “down stairs and said he it, didn’t do it will be you.” bad for The said detectives were not introduced jailer the denied that this incident occurred. The judge thereupon trial admitted the confessiоn into the record.
The conduct of the two if detectives, true, would of course be indefensible and would warrant and receive our credibility condemnation. Yet the issue of fact as well as upоn judge preliminary qualifica was for the trial such willing tion, and we are not to disturb his conclusion. (2d) State, v. Street Miss. 26 So. 678. being opinion
The confession admitted, we are of suport testimony that it was available аdduced establishing corpus in aliunde delicti. There was no burglariously room for doubt that the room had been battery pur- entered and the assault and committed. The entry pose necessarily provаble of such and assault is circumstantially. Here the existence of a criminal intent
433
specific
is clear
a
and
intent
is,
to ravish
at least, consist
proven
reasonably
ent with the
facts and
inferablе. A
burglarious breaking
pur
is evidence of some unlawful
pose, Thompson v.
124
State,
463,
Miss.
86
871;
So.
Mose
ley v. State,
There was in no error of Miss testimony Nadine Wade for the Her State. was that she saw, about the time of the assault, somе one dressed in dark trousers “dart around the corner” of house, her away which was two doors from that victim. Such testimony incriminating was either relevant as or was entirely harmless. Hence its admission was not еrror. reopen
After both sides had rested the State moved to testimony it overlooked, to introduce had in the direct mother, examination of the victim and her to establish previous chastity. The trial сourt did not abuse its dis allowing Ample opportunity cretion in this to be done. proof
for cross-examination was allowed. This an was the accusation of which element of defendant had been duly Roney State, v. 167 Miss. 827, informed. 150 So. State, Miss. 158 542, 339, v. 173 So. 161 774; Brown So. grounds, 278, 465, 461, rev. on other 297 U. S. 56 S. Ct. 181 682; State, 455, L. v. Miss. 80 Ed. Clark So. 602. distinguish 1008, 16 State, 490, v. 72 Miss. So. is Reddick egregious upon facts, its and contained other able errors requiring reversal. appellant prоbability that could mere have been
The prosecuted sentenced under Code Section 2011, and battery deadly weapon with a with intent for assault attempt, an is 2017 for met ravish or under Section tried, сonvicted and sen- indicted, that he was the fact 2361. under tenced Section
Affirmed. *10 Suggestion oe Error.
On opinion sug- the McGehee, J., the of court on delivered gestion of error. question urged whether or the
We are to reconsider to accused, which was testified- the of the not by confession voluntarily. freely The and officers, the was made proof that is that a state- issue on behalf of the on State presencе by in the of officers ment was made the accused writing, Bogers, to but which was reduced McLeod and sign, stating that men had “two which he refused to day; during the of that him forenoon” treated kind of bad Bogers thereupon that he “would not stated that officer anybody,” from under those conditions take a statement his cell. The writ- was then returned to the accused and signed, having the the been details of confession, ten not by at trial. the officers the were testified to (cid:127)same men inter- that these two who had The accused testified plain during men, were clothes him the forenoon viewed they when him at twice he leаst refused to and struck that charged against the crime that he had committed admit they that after had thus treated testified him. He further say you you go they “If and did downstairs said: him, you.” mighty it will be bad it, not do testimony the effect thаt he was mis to There was no Bogers on the and occasion officers McLeod treated writing. they in The trial his statement down took when try judge to ascertain the in his effort truth was zealous freely was made not this confession and or to whether as jailer Voluntarily, the to be called as a wit he caused present at said was the time he accused ness, whom jailer was mistreated, and the in testified substance that while he had no distinct recollection of the occasion, or present whether he was even at the time the interview was positive had, he Ivas that no one had struck the accused complained any on occasion of or at other time in his presence, although prisoners he that admitted sometimes ‘£ ’’ unmercifully. were assaulted but not However, he was not asked to whether as one of the two men who were said prisoner to have mistreated the made the statement to yon go say you him that ££If downstairs and it, did not do ’’ mighty yon. it will be bad for Therefore the statement wholly undisputed of the in that accused behalf is in this record. steadfastly upon
However, the accused testified, both hearing judge before the trial in the absence of the jury jury, and on the trial on the merits before the that Rogers he did not in fact admit to officers McLeod and say, that he had committed the crime. That is to he having denied made to them a confession of the details *11 they about which Therefore, testified. his contention by here that the confession testified to the officerswas not at his all, made and contention that such confession was freely voluntarily previ not and made on account of thе prior mistreatment ous accorded to him thereto, cannot Commonwealth, Upshur be true. As was in both said the case of v. 649, E. 435, 437, V a. 197 S. "If the de confession, made no it is fendant evident that neither fear If him. he nоr favor moved did make the confession, it equally testimony upon clear that his trial is was false. positions only successive of the The defendant are not they mutually each other, with but are inconsistent con tradictory. subsequent To sustain his contention, he asks disregard accept evidence, his and ns to as true the evi that a the officers confession of was dence made, but to accept their that evidence it voluntarily to was refuse ’’made. having any accused had not denied If the made con- we would feel all, at constrained to fession reverse the testimony conviction hеrein because the fact that his during by as to threat him made to the forenoon plain wholly undisputed, jailer clothes men is not having having'testified been asked this threat, about and only by anyone presenсe that he was not struck in his after his arrest crime. But, for this we think that one say accused of crime cannot be heard to that he did not a all, make confession at at the same time contend allеged that an confession was under made inducement by say of fear. We do not mean this to that one who acting claims to have been fear under when he makes guilt statements which involve his of crime cannot be dispute that some of the heard statements in embodied alleged actually an were not confession made as disclosed by may may a written statement which he or not have signed, having аsor testified to the officers as been orally holding limit made, but we this to a case where an any having alleged accused denies made statements in an at confession, and the same time contends that he was acting fear when under he made them. opin- stated, the reasons hereinbefore we
For are of the suggestion that the of error should be, ion and the same hereby is, overruled.
Suggestion of error overruled. et Carpenter
Clark v. al. Suggestion 10, (In Feb. 1947. of Error Banc. Overruled March
1947.) (2d) 215. No. [29 36327.] So.