Wilkerson v. State

64 So. 420 | Miss. | 1913

Cook, J.,

delivered the opinion of the court.

■Appellant was convicted of the crime of rape, and sentenced to be hanged. There are several assignments of error, but we will notice but one.

At the trial appellant offered to prove the general reputation of the prosecutrix for nnchastity was bad. To this evidence the district attorney objected, and the objection was sustained by the court. “The bad reputation of the prosecuting witness for unchastity existing prior to the date of the crime is always relevant in evidence to show that the sexual intercourse may have been consented to by her.” Underhill, Crim. Bv., section 418; Wigmore on Evidence, section 62, pp. 130, 131; Clark’s Crim. Law, 222.

It is contended by the attorney-general that this was not made a special exception by the motion for a new trial in the trial court, and cannot for this reason be availed of here. Paragraph 3 of rule 6 (59 So. 8), promulgated hy this court October 7,1912, reads thus: “The right of an appellant to obtain a review in this court of any ruling made in the trial court shall not depend in anywise upon his having filed in such court a motion for a new trial, or if such motion has been filed upon the grounds thereof being distinctly specified.” It is only necessary to assign the error in this court, and when it appears in the record that the error was made by the lower court, and exceptions taken, the error will be considered by this court.

Reversed and remanded.