Welch v. State

69 So. 770, 110 Miss. 147

• Court: Mississippi Supreme Court
• Decided: October 15, 1915
• Status: Published

Opinion

Cook, J.,

delivered the opinion of the court.

Appellant was convicted of an assault with intent to rape. The previous chaste character of the prosecutrix was put in issue, and upon this subject the evidence was in sharp conflict. The state’s evidence was of a negative nature, while the evidence offered by the defendant was positive.

At the request of the state the court instructed the .jury as follows:

‘ ‘ The court further charges the jury for the state that the strongest proof of the good reputation of the prosecutrix for virtue and chastity is the proof that no one had heard her reputation in this particular discussed before the alleged assault.”

The giving of this instruction was error. Coleman v. State, 59 Miss. 484; Hammond v. State, 74 Miss. 214, 21 So. 149. Besides being an instruction upon the weight and value of the evidence the court treated the state’s •evidence as proof.

Again, it will be observed that this instruction assumes ‘£ that no one had heard her reputation in' this particular discussed before the alleged assault.” This assumption finds no support in the evidence, for the reason that a number of defendant’s witnesses gave testimony quite the reverse of this dicta of the trial judge.

Reversed and remanded.