Smith v. State

Counsel

Osborn Witty, Neill Clark and Chas. W. Crisler, for appellant. The lower court erred in excluding testimony which went to the very credibility of the prosecutrix's testimony. Smith was indicted under section 1092, Hemingway's Code, which defines rape. The witness Ellen Moore said that the prosecutrix had admitted to her that she had been in the custom, and it was as a matter of fact, a common thing for her to have these relations with her brother and other boys. The court realizes that it would be matter of practical impossibility to introduce children who actually participated in these acts, but we say that, taking all the facts and circumstances of this case as disclosed by the record, this testimony ought to have been admitted as evidence tending to destroy the corroborative testimony of the physicians, and to account for her physical condition. All this went to the credibility of this witness. The court permitted the appellant to lay the predicate for the contradiction of the prosecutrix on these matters by the testimony of the prosecutrix, in the presence of the jury, but when the contradiction was sought to be made by the testimony of Ellen Moore, the court excused the jury and excluded the contradictory testimony from their consideration. The court having done this, the jury had a right, and probably did, to conclude that the appellant was unable to establish by Ellen Moore or by anyone else, the facts upon which the predicate for the contradiction was laid. Richardson v. State, 56 So. 454, 100 Miss. 514 , sustains our contention. See, also, State v. Griffin (Wash.), 11 Ann. Cas. 95; Kolb v. State, 95 So. (Miss.) 358. In the case at bar, the prosecutrix had denied emphatically any illicit or improper relations with her brother or any other boy, and the court had permitted the appellant to lay the predicate to contradict her. Certainly, we say that the evidence of Ellen Moore should have been admitted as impeaching the credibility of the prosecutrix. Harry M. Bryan, Assistant Attorney-General, for the state. The court did not err in excluding the testimony of appellant's witness, Ellen Moore. The court will notice from the record that appellant introduced one Ellen Moore, a schoolmate of the prosecutrix. In the absence of the jury the court heard testimony from this witness which was to the effect that sometime before the offense alleged to have been committed by appellant, Josephine invited her to come to her home. She testified that at this time Josephine stated to her that they could "play nasty;" that Josephine had told her that she had done so with other boys. The state objected to this line of testimony because of the fact that it threw no light upon the issue involved in the trial of the case. The lower court correctly held that if its purpose was to show that the condition of the prosecutrix on Monday night, as testified to by her and the physician, might or could have been caused by other children, it would be necessary for definite and specific proof to be made. It is unnecessary for us to cite authority to uphold this action on the part of the lower court. Counsel complain that its purpose was to show that her condition could have been brought about by other boys in the community and cite Richardson v. State, 100 Miss. 514 , 56 So. 454. The Richardson case could not possibly apply here, for as stated by the court in that case, the physician who examined the girl testified that she was not bruised in any way and that he found no indications of any intercourse having been had with her on that day. Surely, appellant could not have been allowed to introduce testimony of such highly speculative and remote character. It certainly was not best evidence. It was incompetent because not confined to any definite time which could have produced the condition of the female at the time she was examined. Argued orally by S.I. Osborn and S.D. Neill, for appellant, and H.M. Bryan, Assistant Attorney-General, for the state.