dissenting:
The offense with which the defendant is charged is a heinous and detestable one. If he is guilty, the penalty imposed upon him, although it is the extreme limit of the law, seems insufficient.
It is, however, a charge easily made, and extremly difficult to disprove. Under the harsh rule laid down by this court that the complaining witness’ story needs no corroboration, it is almost impossible to disprove.
The father positively denied the charge.
The complaining witness testified that her father whipped her- rather severely at times. This he admitted. He says: “I was stern with all my children and I have tried to raise them right as far as I was able and had the ability. ’ ’ *567‘ ‘ It may have been that I was rather crnel, that is, in punishment, you understand, — I did’nt mean to go over it all the time. It does not do any good to whip a child and then have to go back and whip her again. I never told one that I was going to whip it without I did. I tried to be positive. That is the basis I have built upon ever since I had a family. I have got sis boys and this little girl that was here on the stand against me, and although she comes up here I love the child. I can’t help it.”
Other testimony on this point is as follows:,
Fannie Mercer testified: ‘1Q. And had the care of all these children? A. Yes, sir, I had to take care of all them. Q. And keep house? A. Yes, sir. Q. And look after the getting of the meals? A. Yes, sir. Q And be the general house keeper ?' A. .Yes, sir. Q. Just do all that work around there? A. Yes, sir. Q. And these little fellows yon had to take care of? A. Yes, sir. Q. And your father didn’t appreciate it very much? A. Not much. Q. He punished you severely ? A. Yes, sir. Q. When you was negligent or didn’t do things the way he thought you ought to he would punish you ? A. Yes, sir. Q. Did he strap you? A. I say he did. Q. With a belt sometimes ? A. Yes, sir, and oak switches. Q. ’ And make bruises on you ? A. Yes, sir, he has. Q. He would do that when he thought you didn’t take care of the baby just right or wouldn’t do things just to suit him; he would treat you that way when you didn’t do things to suit him, get meals to suit him or take care of the baby the way he thought you ought to, he would jump on you with a belt or strap and flog you until it would raise bruises over your body? A. Yes, sir. Q. And that didn’t make you feel very affectionate towards him? A. No, ma’am, it didn’t. Q. Then you didn’t want to stay there? A. No, ma’am, I *568didn’t. Q. You wanted to get away because he punished you so? A. Yes, sir. Q. Your aunt left? A. She stayed with us and left a little while before I went to the orphanage. Q. Probably a month before or a few weeks before? A. I don’t know. Q. The idea was, you wanted to get away from that old lonesome place out there where you had to work so hard and was punished so severly ? A. Yes, sir.”
Mrs. Henderson testified: “Q. Tell us about his treatment of her, A. Well, he whipped her pretty severely and he was pretty strict. He started her to school and he had her stopped on account of my health, and he was strict on her. He whipped her rather hard, and he wouldn’t allow any privilege to go like she wanted to go. She thought she ought to have more privileges and he was careful with her and she thought he was hard on her, and he did whip her severely at times. Q. What would he use ? A. Sometimes he would use his belt and sometimes a strap. He was too hard on her and I think that is mostly the trouble now. Q. Did you ever see any bruises or hurts on her caused by these whippings? A. Yes, sir, I have. Q. What did he whip her for? A. He whipped her several times for being, late on the school grounds and he whipped her several times for neglecting these children and when I would bring her in and show him how she would do. Q. Raised bruises and whelps? A. Yes, sir. Q. Tell us how many in the family, living in the house, at that time. A. There was ten of us. Q. How many rooms had the house ? A. Four room house. Q. All of you lived together; just intermingled there as one family? A. Yes, sir. Q. Fannie’s duties there were, of course, to take care of the children ? A. Yes,, sir, she. had to take care of all of them. I just seen that she did. Q. Who took care of the baby at night ? A. i She *569did; Q: She would sleep with the baby and take care of the baby? A. Yes, sir. Q. She did the cleaning up around the house and worked mighty hard? A. Yes, sir. Q. Did the washing and most of the ironing? A. Yes, sir.. Q. .Did the cooking? A. Yes, sir. Q. And took care of five babies and her father used to whip her when you would take her in there and show him she had slovened over the house? A. Yes, sir. Q. She was cooking for you and your husband and five children and her father and doing the washing and ironing and taking care of the house ? A. Only what little' I could do. Q. And he whipped her for neglecting the baby? A. At night. Q. And all that you saw her father do he was acting as a kind and loving father? A. And whipping her severely. Q. And on top of.that, you showed him where she hadn’t done things right? A. Yes, sir. I thought she ought to be raised right. ’ ’
Carmine Mercer testified: “Did he punish her severely ? A. Yes, sir. Q. What would he punish her with? A Leather. Q. Belt strap ? A. Yes, sir. Q. What would he punish her for? A. Sometimes about her work and sometimes about being late at school. Q. Son, you say he whipped her about being late on the road from school and slovening on her work? A. What do you mean by that.? : — she would just lay on the road a good many times and didn’t get her work done.”
This would seem to afford' a motive for the charge this girl brought against her father.
' ' During five months of the period when it is claimed the misconduct was taking place, the defendant’s married sis^ ■ter' and her husband lived in her brother’s home. It was á four room house, and ten persons occupied it. ' There *570could have been very little privacy, and the happenings therein hardly concealed.
Another occupant was the girl’s sixteen year old brother, and he and her aunt and her husband, testified that they saw no indication of any wrong doing or misconduct on the part of the father.
The aunt testified that after having lived in the house with them for five months, and not having witnessed anything to indicate any wrongdoing of this character, her neice made this charge against her father.
It is inconceivable that this child’s aunt, who went to live with them “as a mother to the children” would not have taken steps to investigate, and if she had the slightest reason for believing the child’s story, would not have taken steps to rescue her. Any woman who was not a brute or a degenerate would have done this, and there is nothing in the testimony to indicate that the child’s aunt comes within that classification.
Against the father’s postive denial and the corroboration by his married sister and her husband and his sixteen year old son, we have the complaining witness, whose examination in chief with regard to the offense consists of the monosyllables, “Yes, sir” and “No, sir,” in reply to eatagorical questions propounded by the State Attorney. There is not a particle of testimony in relation to the charge, in the words of the complaining witness herself.
This is all there is of it that seeks to describe the offense: “Q. Fannie, before you went down to Doctor Trice’s did your father ever treat you wrong ? A. Yes, sir. Q. Tell these six men here just what your father did; just go on in your own way. What did he do to you, Fannie? — what *571did he do ? — just tell these men in your own way just what he did to you. A. I told you one time. Q. But you didn’t tell these six men there. They are the ones that want to know. A. He bothered me at night and wouldn’t let me rest, and whipped us when the least thing happened and was mean to us. Q. What did he do to you at night and wouldn’t let you sleep? A. I don’t like to say that. Q. Fannie, do you know what is meant by your private part ? A. No, sir. Q. Just tell these six men just what he did do; just go on in your own way and tell us what happened to you. Did your father ever go and get in bed with you? A. Yes, sir. Q. What did he try to do to you when he got in bed with you? A. I don’t know how to say that word. Q. Did he get on you, Fannie? A. Yes, sir. Q. Did he ever put anything in you ? A. Yes, sir. Q. In your private part, between your leg ? A. Yes, sir. Q. You are sure of that? A. Yes, sir. Q. Now, you say that he did go and get in bed with you? A. Yes, sir. Q. And. got on top of you? A. Yes, sir. Q. And put something between your legs. Did he put it in you Fannie? A. Yes, sir. Q. How many times did he do you that way ? A. I don’t know; I could-n’t tell you. Q. More than once ? A. Yes, sir. Q. Moré than two or three times? A. More than that. Q. Did he put his thing from between his legs in you, that night ? A. Yes, sir. Q. Did he do that just before you went down to Doctor Trice’s place? A. Yes, sir. Q. Just before you left home? A. Yes, sir. Q. You áre sure of that ? A. Sure. ’ ’
Her testimony seems to be that of an imbecile, or' one whose mentality has not developed beyond that of a six year old child, and she seems to belong to the class of deficients who fill psychopathic wards in asylums; the -very *572type from which charges of this character generally emanate.
A corroborative detail — in support of my view, that this girl is a mental deficient, is her twice replying “No Ma’am” to questions propounded by Mr. Garrison. It may seem a slight matter, but it is from such slight indicia that the degree of mental development in children, is determined.
A conviction of so grave an offense — one so unusual and so very unnatural, ought not to be affirmed except upon testimony of the clearest and most unequivocal character. I know of no class of cases where “corroboration” is more essential, if justice is to prevail. ‘ If her story is true there must have been, observant to some of the inmates of this small house, corroborative details, to give verisimilitude to this bald and unconvincing charge. On the other hand, if the father is innocent, how can he establish it ? I think the judgment should be reversed on the facts.
Taylor, J., concurs.