Simmons v. State

Citations

• 105 Miss. 48
• 61 So. 827

Syllabus

<p>1. Criminal Law. Rape. Complaint. Res gestae. Instructions. Expert testimony. Condition of female.</p> <p>In a prosecution for rape upon a child less than twelve years of age, statements made by the child to physicians five and seven days after the occurrence that she had been raped are inadmissible as being hearsay and not a part of the res gestae.</p> <p>2. Criminal Law. Instructions.</p> <p>An instruction for the state in a prosecution for rape that if the jury believe from the evidence and circumstances in evidence that the defendant feloniously had intercourse with his daughter, a female under the age of twelve years, then he is guilty, is erroneous.</p> <p>3. Same.</p> <p>An instruction for the state in a prosecution for rape, .that the crime of rape may be proven by circumstances, and it is not necessary to have an eyewitness to the deed, if the circumstances in evidence are sufficient to create in the minds of the jury a belief that the accused party is guilty beyond a reasonable doubt, is erroneous.</p> <p>4. Same.</p> <p>An instruction for the state in a prosecution for rape, that a female child less than twelve years of age cannot consent to sexual intercourse, and if a man has intercourse with such child, voluntarily, so far as he is concerned, then he would be guilty of rape, regardless of whether the female consented or not, is erroneous.</p> <p>5. CbimiNal Law. Expert testimony. Condition of female.</p> <p>In a prosecution for rape a physician may testify as to the penetration and as to his opinion upon the possibility of the injury being caused by barbed wire fence. He may describe the physical condition of the girl and may testify how sexual intercourse would affect the organs of a child; but he may not testify as to whether or not, in his opinion, the injury was caused by sexual intercourse.</p>