Moore v. State , 102 Miss. 148 ( 1912 )

Cook, J.,

delivered the opinion of the court.

The appellant was indicted, tried, and convicted of an assault with the intent to commit rape. The indictment, omitting the formal part, charges that appellant ‘ ‘ did unlawfully and feloniously make an assault upon one Eula Floyd,- a female, with the unlawful and felonious intent then and there her, the said Eula Floyd, to unlawfully and feloniously ravish and carnally know, forcibly and against her will.” A demurrer was interposed to this indictment, and overruled by the court.

Section 1358 of the Code of 1906 defines the crime of rape and fixes the punishment, where the party raped is a female under the age of ten, or, being over ten, where the carnal knowledge is against her will. Section 1359 of the Code reads as follows: “Every person who shall be convicted of an assault with intent to forcibly ravish any female of previous chaste character shall be punished, by imprisonment in the penitentiary for life, or for such shorter time as may be fixed by the jury.” Section 1360 provides for the punishment of persons who shall have carnal knowledge of any female above the age of ten years without her consent, by administering to her any substance or liquid which shall produce such stupor or such imbecility of mind or weakness of body as to prevent effectual resistance. Section 1043 of the Code provides for the punishment of persons who may assault or be guilty of assault and battery upon another with any deadly weapon, or other means or force likely to produce death, with intent to kill and murder, or to maim, ravish, or rob such other person, or in the attempt to commit any murder, rape, etc. Section 1049 is as follows: “Every person who shall design and endeavor to commit an offense, and shall do any overt act towards the commission thereof, but shall fail therein, or shall be prevented from committing 'the same on conviction' thereof, shall, where no provision is made by law for the punishment of such offenses,” etc. The foregoing sections are gathered under the chapter of the Code headed “Crimes and Misdemeanors,” and comprise all the sections referring to rape. At the outset we will say that the demurrer to the indictment was properly overruled, because the indictment at least charges an assault with the intent to commit a felony, to wit, rape, under the common law, which was a misdemeanor.

The evidence in the case discloses the following state of facts: Three sisters, aged seventeen, fifteen and twelve, respectively, were asleep in the same room; the two oldest occupying the samé bed. Late at night one of the girls awakened with the feeling of being crowded. She threw her hand backwards, and told her sister to move away; but when she touched the body of the person crowding her, she found that a man was in the bed between her and her sister. Both of the sisters sprang from the bed and ran into their father’s room, adjoining their own, crying- that a big yellow negro was in the room. The neighbors were alarmed, and gathered to institute a search for the criminal, and hounds were procured to follow his trail. .The tracks leading from the ground under the window of the room occupied by the girls were followed quite a distance, but they seemed to lead in no particular direction, but the party who made them seemed to be wandering at random. Two days after this occurrence a charge was made against the defendant by the girls, and he was arrested. The defendant was charged with assaulting Eula, the elder of the two girls, with intent to ravish her. The other girl, Edna by name, claimed to have recognized the defendant by the aid of the moonlight as he went out of the window. Eula in her testimony said that, when she turned in the bed to see who it was that was crowding her, the man turned his face over the pillow presenting his profile to her, and she saw in his hand a bottle containing some white liquid, and that the man had his finger over the mouth of the bottle. She said, that she saw the defendant two days after this incident, and recognized his profile as the party who had gotten in bed with her and her sister.

The defendant was a foster-brother of the father of these young girls; but for some reason, unexplained by the record, an estrangement had grown between them, and they had not had any association with or recognition of each other for thirty-four years, and their families had no social or other relations with each other during this time. It seems that the father of the girls was willing, if the law would permit him to do so, to withdraw charges against the defendant, and allow him to leave the country. When the wife of the defendant was on the stand testifying in his behalf, and under cross-examination by the district attorney, she was ashed if her husband had not agreed that he would pay to the father one hundred dollars if he would withdraw the charges and allow him to remain at home with his family. To this question the witness replied that her husband had not promised or agreed to pay anything to the father of the girl, in consideration of the withdrawal of the eharg’e. The district attorney then produced a letter and exhibited, it to the witness, the wife of the defendant, and asked-if she did not write to the father of the girls, and so state to him that her husband, would pay this sum of money as before stated, and read this statement in the letter to her in the presence of the jury. The witness said that, while that was contained in the letter, her husband had nothing to do with it; but the letter was written upon her own motion, for the purpose of aiding her husband in his trouble. The court then suggested to the district attorney that this, together with the entire letter, should he submitted to the jury, which, was done over the objection and protest of defendant’s, counsel.

Under the guise of contradicting the witness, and about a collateral matter, the state then succeeded in getting before the jury something which was very prejudicial to the defendant. It crops out in the evidence-that the father of the injured girls was willing that the prosecution of defendant should be abandoned, if this-could be done; that the plan proposed contemplated the removal of defendant and his family from the state, but the wife of defendant was unwilling to leave her home to go to a distant state, and she volunteered to write a letter to the father of the girl, in which she said her husband would pay one hundred dollars, if he was allowed to remain at home. This was entirely collateral to the issue,, all of this proposed compromise, and certainly led the jury to believe that the defendant tacitly confessed guilt by entering into such an agreement, which the evidence of his wife shows he did not do; but it is very probable that tbe jury gave little weight to this part of her testimony. Bridges v. State, 86 Miss. 378, 38 So. 679.

It was error, also, to permit witness Edna Floyd to testify that she told her sister, immediately after the flight of the person from their room, that she recognized the person as Berry Moore, the defendant. Williams v. State, 79 Miss. 555, 31 South. 197. The identity of the man committing the crime was the all-important question in this case, and this witness, Edna Floyd, was the only witness who claims to have recognized the man.

For these errors, the case must be reversed.

It will be observed that the pleader, in drafting the indictment followed the- language of section 1359, and it also appears that this section is the only statute of this state which, in terms, makes an assault with intent to ravish a felony. This indictment here does not charge an attempt to ravish, nor does it set out and describe any overt act constituting an attempt, unless it can be said that the use of the word “assault” implies an attempt, and under the authorities this is very doubtful. Brown v. State, 7 Tex. App. 569; Burney v. State, 21 Tex. App. 565, 1 S. W. 158; Taylor v. State, 22 Tex. App. 529, 3 S. W. 753, 58 Am. Rep. 656. These cases seem to decide that where the indictment charges the rape to have been committed by force, and at the trial there is no proof of force, the defendant cannot be convicted of assault with intent to rape. Such pleading and proof will justify a conviction only for an attempt to rape. It is difficult to harmonize the authorities upon this particular feature of this case. Our legislature makes, in section 1359, an assault with intent to commit rape upon a female of chaste character a felony of the highest grade, and inasmuch as under the common law this offense was a misdemeanor only, and was a distinct offense, it seems doubtful as to whether or not the indictment under review charges the defendant with anything more than a misdemeanor. If the indictment averred the previous chaste character of the female, it would be beyond criticism. The case may be retried, and these suggestions are offered because of this contingency.

Reversed and remanded.