McEwen v. State

Smith, C. J.,

delivered the opinion of the court.

This is an appeal from a conviction of statutory rape, as defined by chapter 171, Laws of 1914 (Hemingway’s Code, section 1093). The indictment contains two counts: The first was drawn under section 1358, Code of 1906 (Hemingway’s Code, section 1092), and charges that the prosecutrix was .forcibly ravished by the appellant. The second was drawn under chapter 171, Laws 1914 (Hemingway’s Code, section 1093), which provides:

“That any male person who shall have carnal knowledge of any unmarried female person of previously chaste character younger than himself, and over twelve and under eighteen years of age, upon conviction, shall be punished either by a fine not exceeding- five hundred dollars ($500), or by imprisonment in the county jail not longer than six months, or by both such fine and imprisonment or by imprisonment in the penitentiary not exceeding five years.”

*344 The punishment provided by the first-named statute for a rape accomplished by force is death, unless the jury shall fix the punishment at imprisonment in the penitentiary for life.

A demurrer to this indictment complained of the joinder of the two offenses in the one indictment, and was overruled, as was also a motion by the appellant that the state be required to elect on which count he should be tried.

The two felonies charged in the indictment differ materially, both in their elements and their punishments, and consequently the court below should either have sustained the demurrer to the indictment in whole or to one count, or have compelled the state to elect on which count the appellant should be tried. State v. Rees, 76 Miss. 435 , 22 So. 829 .

The previous chastity of the prosecutrix was attacked by the appellant by the testimony of himself and another that each of them had previously had sexual intercourse with her on several occasions. The only testimony in denial of this was that of the prosecutrix herself. In order to bolster up the testimony of the prosecutrix and thereby induce the jury to believe her in preference to the appellant and his witness, the state was allowed to prove by a large number of witnesses that the prosecutrix bore a good reputation for truth and veracity. Her reputation therefor had not been attacked, was therefore not in issue, the evidence relative thereto was consequently not admissible, and was manifestly prejudicial to the appellant. Brewer v. Mullins, 97 Miss. 353 , 52 So. 257 .

Reversed and remanded.