Pearson v. State

53 So. 689 | Miss. | 1910

Whitfield, C.

The instruction which was refused to the defendant should have been given. But its refusal, in view of the other charges given for the defendant, did not constitute reversible error, of itself alone.

It is argued very earnestly, by counsel for appellant, that this judgment ought to be reversed, because the testimony wholly fails to support the verdict. The fact is pointed out that the affidavit was not made by the prosecutrix herself, but by her mother, after the mother had left her husband’s home, and was separated from him, and that it was not made for over a year after the alleged- commission of the offense, during which time-the defendant was away from home a great deal, and the prosecutrix and her mother were at liberty to have made the charge-at any time earlier. Attention is called further to the testimony showing the bad state of feeling existing between the daughter and mother, on the one hand, and the father, on the other; in short, to various- other circumstances which are disclosed in the-evidence. But all this evidence was for the jury, not this court, and we cannot set aside this judgment on this ground. ■

Testimony was admitted, however, showing messages sent by the mother and the father of the accused, and showing that they had accused him of this offense. All this was pure hearsay, and should not have been admitted. But this court would not reverse the judgment for this error alone.

In the course of the trial, over the strenuous objection of the appellant, the court permitted the prosecutrix and her sister, Nannie Pearson, to testify to certain conversations and charges, including the charge of this offense, made against the appellant by his wife. This was a most flagrant error, as distinctly held in Garner v. State, 76 Miss. 515, 25 South. 363. The wife could not have been introduced herself to testify that she had charged defendant with the crime; and a fortiori these witnesses could not testify that their mother had accused- him. This was-fatal error.

But there is an error in the record more astounding than this. The state was permitted, over the earnest objection of the defendant, repeatedly made, to prove by the witness Steele, that the citizens had held a meeting about this alleged crime, organized themselves- into a committee of inquiry, and adjudged the defendant guilty, and then gone to the defendant, or sent their-agents to him, and told him of this finding that he was guilty, made by this mass meeting’, and further told him that he had better leave the state, or prosecution would immediately follow. This is one of the most extraordinary blunders that a court could possibly have committed, and one of the most fatally prejudicial. Upon what theory the court below1 could have allowed witnesses to testify to the assembling of a mass meeting, their adjudication that the defendant was guilty, and that this mass meeting had notified the defendant that they had found that he was- guilty, and that he must leave the country, or he would be prosecuted, passes our comprehension. It is perfectly obvious that this-sort of testimony inevitably inflamed the jury with prejudice against the defendant, and must have powerfully influenced them, since the only effect it could possibly have would be to advise the juiy of public sentiment in the matter, and that they were expected to conform to this public sentiment. Surely there is no man, fair-minded and desirous of seeing the law of the land justly and impartially administered, who for one moment could be brought to sanction this extraordinary invasion of the right of defendant to a fair trial by an impartial jury. When it is remembered that, in cases of this flagrant character, there is little danger that the jury will fail to convict, if the trial is conducted with strict regard for the rights of the defendant, no excuse whatever can be left for injecting into-the record blunders of this flagrant character, which must necessarily result in reversal at the hands of this court.

This assignment of error, therefore, is one which compels a reversal, in order that the trial guaranteed by the constitution and the laws of the land shall not be taken away from -the defendant. Public passion has no place in the jury box. The fury of a mob must stop' at the doo-r of the temple of justice, else defendants cannot be tried in accordance with the constitution and the law of the land. To allow a defendant to be illegally tried, because of the passion of the mob in one case, however guilty the party may be, will be to set a precedent of dire effect, which can be invoked against'men who may be pen fectly innocent. And more especially ought this to be kept in mind when, as stated, wherever one is manifestly guilty of some shocking crime, he will be certain to be convicted, even when the court gives him the full benefit of a fair trial.

In the course of the trial, one Butler, a physician, was permitted to testify to a physical examination of the private parts of the prosecutrix, that examination having been made on the 13th day of May, 1910, when this offense was alleged to have been committed on the 1st of April, 1909, more than a year before the examination was made; and this witness was allowed, while stating that he was not an expert, nevertheless to give it as his opinion from this examination that the prosecutrix was not a virgin. His testimony to this effect was a pure opinion, and nothing else, and not given as the opinion of an expert, and was clearly inadmissible. See State v. Heux, 109 Mo; 654, 19 S. W. 35, 32 Am. St. Rep. 686.

Per Curiam.

The above opinion is adopted asi the opinion of the court, and, for the reasons therein set out, the judgment of the court is reversed, and the cause remanded for a new trial.