Simmons v. State, 61 So. 827

Simmons v. State

61 So. 827 | Miss. | 1913

Cook, J.,

delivered the opinion of the court.

Appellant was indicted by the grand jury of Pike county, charging him with .the rape of his daughter, less than twelve years of age. Upon a change of venue to Lincoln county, he was convicted by a jury and sentenced to a life term in the penitentiary.

The horrible and almost unthinkable crime imputed to appellant, together with the verdict of the jury, naturally predisposes the court to affirm the judgment of the trial court. But an effort to write an opinion in affirmance *56serves only to demonstrate that to ignore the manifest errors apparent upon the face of the record would he to override all precedent and result in a refusal to the defendant of a fair and impartial trial. Stated in short, the circumstances.and facts in evidence, viewed from one angle, authorizes a belief of the defendant’s guilt; viewed from another angle, the jury would he justified in finding the defendant not guilty.

The alleged victim did not testify before the jury, hut the theory of the defense was that the girl was not ravished by defendant, or any one else, but the injury found by physicians was caused by the girl falling across a barbed wire fence. This theory was proven by two alleged eyewitnesses — the sons of appellant and the brothers of the alleged victim. The state contradicted this evidence by the testimony of two physicians who examined the girl; they testifying that the wounds and lacerations of the child’s genital organs could not have been made in the manner described by defendant and his witnesses. By witnesses, the testimony of defendant’s witnesses was discredited, and, if believed, the evidence for defendant was thus completely destroyed.

Various other damaging and inculpatory circumstances were proven by the state. With the record in this state, the court permitted the physicians to testify that the child, five and seven days after the date of the alleged outrage, told them she had been raped. This was hearsay evidénce of the purest type. Under no phase of the case could it be claimed to be a part of the res gestae; nor was it admissible to corroborate or support the evidence of the victim, for the reason that she did not testify at all. The rule does not permit the introduction, under the guise of res gestae, of a narrative of past events, made after the events are closed, by the party injured. "Wharton’s Criminal Evidence, vol. 1, sections 254-270; Wigmore on Evidence, section 1135 et seq.

Unless the complaint made by the prosecutrix constitutes part of the res gestae, evidence of it can be given *57only in corroboration of the testimony of the prosecutrix, and is inadmissible in case she does not testify. Ency. of Evidence, vol. 10, p. 589, and notes; Roscoe’s Criminal Evidence, p. 26. This seems to be the universal rule. The outcry or complaint of the woman, if offered, in evidence as a part of the res gestae, must have formed a part of the transaction, or it must have been immediate. In such cases it is not necessary to examine as witnesses the persons, who, as participants in the transaction, thus instinctively spoke or acted. What they said or did is res gestae; it is part of the transaction itself.

As a species of hearsay, the victim of a rape may testify that she made immediate complaint,, or other witnesses may so testify in corroboration of her testimony; but this exception to the rule against hearsay testimony does not go so far as to permit a third party to testify what the injured party said about the past tranaction, nor would it corroborate any witness who had testified.

In addition to the admission of the hearsay evidence, the first three instructions given for the state are obviously erroneous, and are not cured by the instructions for defendant.

We think there was no error in permitting the physicians to testify as to the penetration, or as to their opinion upon the possibility of the injury being caused by a barbed wire. The physician may describe the physical condition of the girl, and may testify how sexual intercourse would affect the organs of a child; but he may not testify as to whether or not, in his opinion, the injury was caused by sexual intercourse.

We find no other error than the ones mentioned.

Reversed and remanded.