Anderson v. State , 82 Miss. 784 ( 1903 )

Truly, J.,

delivered the opinion of the court.

Appellant was convicted of rape, and appeals. The first instruction for the state tells the jury that if they believe that the defendant forcibly and against the will of the prosecutrix carnally knew her, then he was guilty as charged, and the jury should so find; and “this is true whether you believe from the evidence that she made any active resistance to his assault upon her or not.” This is tantamount to telling the jury that mere passive resistance, silent objection, on the part of the assaulted female, is sufficient to justify a jury in convicting of rape. Under the facts developed, this was fatal error. It is true that, where the resistance of the female is overcome by drugs or similar means, this instruction might be correct; but no such case is developed here.

The second instruction for the state, while correct as an abstract proposition of law, was not applicable to the instant case. And the last clause of that instruction was dangerously misleading, in that the jury were authorized to conclude that it was intended by the court to convey the idea that the testimony warranted the belief that the assault in question had been submitted to by prosecutrix “through fear of personal violence, and to avoid the infliction of great personal injury,” whereas the testimony of the prosecutrix does not sustain this view.

The defense placed before the jury was an alibi. Under these circumstances it was prejudicial to appellant’s case to permit the witness, Sallie Dixon, to testify, over repeated objections of defendant, that the prosecutrix (her mother), immediately after the happening of the occurrence, told witness that it was John Anderson (the defendant) who had raped her. It is true that the court did not expressly rule on the objections of the defendant to this testimony, but nevertheless the witness was permitted to repeat the statement four different times, and the district attorney was permitted to base one or more questions upon it before the court sustained the objection and ruled out the statement. The judge should promptly have intervened in a case of this character, so easy to charge, so difficult to defend, and sustained the objection of counsel for defendant, and prevented statements so prejudicial, and so contrary to the rules of evidence, getting before the jury. But, even after the judge had sustained the objection to the.witness’ statement that the prosecutrix had told her who had committed the assault upon her, he afterwards permitted the witness to state when and where it was that the presecutrix claimed that the assault had occurred. This, too, was error. The opinion of the court in Brown v. State, 72 Miss., 997, 17 South., 278, is misunderstood, when it is referred to as an authority for the introduction of this testimony. That opinion, on the contrary, expressly limits the statement of the prosecutrix, after the perpetration of the offense, to the bare statement that she claimed that an assault had been committed, though, as part of the res gestae, the witness is permitted to relate the physical condition, and any marks of violence upon the person or clothes of the prosecutrix. Ordinarily any and .all statements made by a party assaulted after the commission of the crime is hearsay, and not admissible. An exception is made in the case of rape alone, but even in that case no statements made by the prosecutrix are admissible except her complaint that she had been ravished. The details of the transaction, the name of the party accused, the place where it is said to have occurred, the time of the alleged offense, cannot be proven by a repetition of the words of the prosecutrix. The exception in cases of rape is made upon the idea that outraged virtue will proclaim her wrong, and therefore silence might be considered as raising a suspicion of consent. This exact point was decided in the case of Ashford v. State, 81 Miss., 414, 33 South, 174.

For the errors indicated, the case is reversed and remanded.