Milton v. State , 142 Miss. 364 ( 1926 )

Holden, P. J.,

delivered the opinion of the court.

Robert Milton appeals from a conviction on a charge of rape and "a sentence of death.

We have carefully considered the testimony in the case, which we shall not set out in detail, and have reached the conclusion that the testimony is sufficient to sustain the conviction, and that, while the testimony appears to be somewhat weak in certain respects, yet it was sufficient to warrant the verdict of guilty, if believed by the jury.

The two points urged for reversal are: First, that the proof was insufficient to show that the appellant was the person who committed the rape; and, second, that there was no resistance on the part of the female necessary under the law to constitute rape.

The identification of the accused was shown by the testimony of the prosecutrix and another witness for the state, which testimony was corroborated by another witness and certain circumstantial evidence; and we think the jury was within its province in deciding that the appellant was the man who committed the rape.

As to the lack of resistance on the part of the prosecutrix, we find from the evidence in the case that she made very little, if any, effort to resist the purpose of the accused, but she testified that her failure to do so was due to the fact that she was put in fear by the accused, who accosted her in a lonely pathway in the woods with a revolver in his hand, which she feared the appellant might use if she did not comply with his demands, and that, on account of such fear, she yielded without physical resistance.

Of course the law is well settled that, if the female fails to resist the attack, and in that way passively consents, then it is not a genuine case of rape; but, if the female is put in fear by the assailant, and on account of such condition she fails to resist the attack, it may be rape under the law.

The jury in this case had the testimony of the prosecutrix, who testified positively that she was put in fear by the appellant and his pistol, he being a strange negro and she a white girl sixteen years of age, and that, on account of this fear, she made no substantial resistance to the appellant. Therefore the jury was justified from the proof in deciding that the appellant was guilty of rape under the facts and circumstances of the case. This court will not reverse the finding of fact by a jury, where it is supported by reasonable, positive, and credible evidence, even though it may appear from the record that a different jury might have rendered a different verdict.

The judgment of the lower court is affirmed, and Friday, April 30, 1926, is set for the day of execution.

Affirmed.