Lee v. State , 201 Miss. 423 ( 1947 )

The appellant was convicted of an assault with intent to ravish a female of previously chaste character, under Code 1942, Section 2361. The assigned errors which we shall discuss are: (1) the failure of the State to establish the corpus delicti; (2) the admission of a confession by accused; (3) admission of certain testimony; (4) the granting of the State's motion to reopen its case after both sides had rested; and (5) sentence under the wrong statute.

The following facts were testified to by witnesses for the State. The victim was awakened by severe blows upon her head evidently from an empty soft drink bottle. The screen window had been forced open and she saw a man at the window in the act of escaping. Neighbors saw a man leaving the premises at the time of the assault and the officers soon thereafter arrested appellant nearby and found him panting and out of breath as if he had been running and with his shoes and the lower part of his trousers wet.

Appellant was placed in jail and on the afternoon of the following day he was interrogated by two officers to whom he confessed that it was he who had broken in the room and struck the victim three times while she was asleep in bed; that he had watched and waited outside while she prepared for bed, and that his intent was to ravish. There is no question whether any coercion was used by these officers, but, on the contrary, defendant testified they had "been nice to him" and had explained that his statement would be used against him and that such statement would be wholly voluntary. The details of the confession had never been suggested or known by any one other than the defendant. When he was requested to sign the statement after its reduction to writing, he refused to do so stating that during the morning two officers in the room and presence of the jailer "had treated him kind of bad." The interview was thereupon closed and his signature was not insisted upon.

The defendant testified that during the morning referred to, two plain clothes men had brought him to the office of the jailer and demanded that he confess the crime, and struck him twice with the warning that if he went "down stairs and said he didn't do it, it will be mighty bad for you." The said detectives were not introduced and the jailer denied that this incident occurred. The trial judge thereupon admitted the confession into the record.

The conduct of the two detectives, if true, would of course be indefensible and would warrant and receive our condemnation. Yet the issue of fact as well as credibility was for the trial judge upon such preliminary qualification, and we are not willing to disturb his conclusion. Street v. State, 200 Miss. 226,26 So.2d 678.

The confession being admitted, we are of the opinion that it was available to suport the testimony adduced aliunde in establishing the corpus delicti. There was no room for doubt that the room had been burglariously entered and the assault and battery committed. The purpose of such entry and assault is necessarily provable circumstantially. Here the existence of a criminal intent is clear and a specific intent to ravish is, at least, consistent with the proven facts and reasonably inferable. A burglarious breaking is evidence of some unlawful purpose, Thompson v. State,124 Miss. 463, 86 So. 871; Moseley v. State, 92 Miss. 250, 45 So. 833. In the former an inference of intent to ravish was held justified, while in the latter the finding of a motive of theft rather than rape was approved by the Court, yet such issue involved was one of guilt and not of the corpus delicti. The direct proof was sufficient to admit the confession in aid of proof as to the body of the crime. Keeton v. State, 175 Miss. 631, 647, 167 So. 68; Gross v. State, 191 Miss. 383,2 So.2d 818; Phillips v. State, 196 Miss. 194, 16 So.2d 630.

There was no error in admitting the testimony of Miss Nadine Wade for the State. Her testimony was that she saw, about the time of the assault, some one dressed in dark trousers "dart around the corner" of her house, which was two doors away from that of the victim. Such testimony was either relevant as incriminating or was entirely harmless. Hence its admission was not error.

After both sides had rested the State moved to reopen to introduce testimony it had overlooked, in the direct examination of the victim and her mother, to establish previous chastity. The trial court did not abuse its discretion in allowing this to be done. Ample opportunity for cross-examination was allowed. This proof was an element of the accusation of which defendant had been duly informed. Roney v. State, 167 Miss. 827, 150 So. 774; Brown v. State, 173 Miss. 542, 158 So. 339, 161 So. 465, rev. on other grounds, 297 U.S. 278, 56 S.Ct. 461, 80 L.Ed. 682; Clark v. State, 181 Miss. 455, 180 So. 602. Reddick v. State, 72 Miss. 1008, 16 So. 490, is distinguishable upon its facts, and contained other egregious errors requiring reversal.

The mere probability that appellant could have been prosecuted and sentenced under Code 1942, Section 2011, for assault and battery with a deadly weapon with intent to ravish or under Section 2017 for an attempt, is met by the fact that he was indicted, tried, convicted and sentenced under Section 2361.

Affirmed.