The opinion correctly holds there was sufficient evidence that the eleven year old girl was lured into a truck, then taken to a secluded wooded area and raped. Details are too revolting, and I agree with Mr. Justice ROBINS (who wrote the majority opinion) that it is best not to emphasize them or give unnecessary publicity to a course of conduct too vile for men to engage in a practice that even some of the lower animal groups disdain.
Torn, bleeding, and frightened to a degree difficult to express, the little victim was returned to her tenant environment, where she immediately told what had happened. When Maxine (while with appellant in the woods) realized that something unusual was about to occur — just what she did not know — her screams were silenced by West who threatened to use a stick, and who also said he would drown her if she cried. Clotted with blood, confused, haunted by fear and perhaps wondering regarding man's inhumanity, this little girl who must go through life bearing the scars of a married man's lust told a jury how and when she had been outraged; and she took officers to the concealed spot not far from a highway where impressions on the ground and other physical factors lent support to the story she had told. The defendant did not testify.
The court, by a majority vote, has reversed the judgment and has said that appellant was unfairly tried because an official report made under authority of law by State Hospital was read to the jury. In the report Dr. A. C. Kolb, superintendent, expressed the opinion that West was and had been sane. We have heretofore hold that *Page 695 the defendant, in circumstances such as we are dealing with, has the right to be faced by the witness, and to cross-examine him. But such holdings were in cases where insanity was a defense. In the case at bar West entered a plea of not guilty. It is true that under this plea want of capacity to form an intent may be shown by reason of insanity. No such proof was introduced. There was testimony that West drank to excess; and his wife and a brother-in-law thought he acted queerly. Mrs. West was asked: "Now, on the day your husband was arrested and that morning he took you to Memphis; had he been drinking that day — that morning before he went?" Answer: "There was something the matter with him. I couldn't say whether he had been drinking or not, but I know he was highly nervous. When he came home he acted like a crazy man." Q. "He acted like a crazy man? Can you describe it?" A. "Well, he just wasn't himself. He was just running around in circles." Q. "What do you mean by that: `figuratively,' or running around?" A. "[He would] go to the pump and help the little boy pump a bucket or two of water, then [go] back to the truck, and from the truck back to the pump, and so forth." Q. "What had he been drinking?" A. "I believe he would have drunk alcohol if he could have gotten hold of it. I knew there was something wrong with him long before this ever happened, by his condition and the way he acted, and the way he treated me. He was so nervous he couldn't be still; just acted foolish."
It is on this testimony and evidence less substantial given by a brother-in-law that the majority predicates its holding that the rapist was denied his constitutional right to cross-examine Dr. Kolb. There is not one line — not even a word — from any witness indicating that organic diseases was present. The doctor who examined Maxine after West had ravished her might have thrown some light on the transaction; or doubtless time would have been given for Dr. Kolb to testify.
The record shows that the Prosecuting Attorney told the court that "[Dr. Kolb] has been ready to testify in *Page 696 this case, . . . but was not called, since the question of sanity was not mentioned as a defense." The court's comment was: "[In his opening statement the attorney for the defendant] stated that his contention was that if [West] did commit the crime, he was so drunk that he had no consciousness of it, and was unable, on account of drunkenness, to form an intent to commit the crime." Appellant's attorney agreed that the court's summation was correct.
The jury had all of the evidence offered by each side relating to the degree of drunkenness to which the defendant subjected himself. Every act, every transaction, his ability to drive the truck, to seek a place of seclusion, to threaten Maxine and to cover as best he could the broad trail that had been left, justified the jury in finding that he knew what he was doing, and that behind it there was design. Not a word of serious proof points to insanity. How, then, can it be said that Dr. Kolb's certificate that he was not insane was prejudicial?
Mr. Justice McHANEY and Mr. Justice HOLT join in this dissent.