Clark v. State , 124 Miss. 841 ( 1921 )

Holden, J.,

delivered the opinion of the court.

The appellant, Flem Clark, was tried and convicted for an assault with intent to rape Susie Miller, a female child under the age of twelve years, and sentenced to a term of fifteen years in the penitentiary.

We shall refrain from stating the unsavory details of the offense as shown by the record; the testimony of the female assaulted was ample for conviction, when considered together with the corroborating proof in the case. However,, the record shows that at the trial of the case the witness Georgia Miller, mother of the prosecutrix, Susie Miller, was permitted, over the objection of the appellant, to testify to all the details of what Susie told her as to who, how and where the assault occurred. This was error.

The outcry or complaint of the female following the offense of rape, or attempt, is competent proof even though it is hearsay evidence, but the exception to the rule admitting this character of hearsay evidence does not go to the extent of permitting the witness to testify to the facts and circumstances in detail as told to her by the female assaulted. Frost v. State, 100 Miss. 796, 57 So. 221.

There is another fatal error in the trial of this case, and that is the state was permitted, over the objection of the appellant, to show by the witness Cross what the prosecutrix had detailed to him about the assault, and also allowed this witness to testify in detail about a proceeding or private trial of accused which he held and presided over on his plantation. At this unofficial investigation this witness Cross seems to have held a court of inquiry, having about a dozen negro men stand up in line, amongst the number was the appellant, and had this ignorant ten year old negro girl to scrutinize the crowd* and she picked out the appellant, and detailed the story of the offense there again. All of this unofficial proceeding was testified to in detail at the trial below by the witness Cross. This error resulted in serious injury to the appellant at his trial.

For the two errors mentioned the judgment of the lower court is reversed, and the case remanded.

Reversed and remanded.