Hawkins, P.J., and Prather and Sullivan, JJ.
The opinion of the court was delivered by: Hawkins, Presiding Justice, for the Court.
Billy Hosford appeals from his conviction of sexual battery of felonious sexual penetration of a child under twelve years of age, and sentence to thirty years in prison.
We reverse Hosford's conviction because of the erroneous admission of inflammatory irrelevant evidence and prosecutorial misconduct. Of necessity, we also address the responsibility of the trial judge to see that his court has adequate facilities to conduct a trial.
Hosford was indicted by the Greene County grand jury on December 10, 1985, for the felonious sexual penetration of Anna Woodall, a child under twelve years of age on June 16, 1985, in violation of Miss.Code Ann. §§ 97-3-95 and 97-3- 97. Anna was born September 27, 1976, and was eight years old at the time.
Mrs. Sheila Hosford had four children by a previous marriage, and she and Hosford had one child. On Sunday, June 16, 1985, Hosford and Mrs. Hosford and their children spent the afternoon on a picnic with Jerry and Alice Woodall, two of their children, Anna and Kimberly, and Stacy Webb, a twelve-year-old who lived with her father in Birmingham.
When the frolic was over, Anna and Kimberly and Stacy Webb wanted to spend the night with Tabitha and Angela Duiett at the Hosfords. The parents agreed. Two of the Hosfords' children stayed overnight with the Woodalls.
The Hosfords lived in a trailer with two bedrooms. The air conditioner in the back bedroom was not functioning on that warm night, so Hosford and Mrs. Hosford and all six children spent the night in the living room where there was a bed and couch. Anna slept on the bed.
When she got her children the next day, Mrs. Woodall was told by Anna that Hosford had engaged in cunnilingus with her the night before while they were in bed.
Following his trial on March 24, 1986, the jury returned a verdict of guilty, and Hosford has appealed.
We have examined the record and concluded that, while factually weak, a jury issue was made on Hosford's guilt. We recognize that in cases of this nature, when the prosecuting witness is of tender years and must testify on the most intensely personal matter a child could be called upon to relate under circumstances that would be extremely difficult even for an adult, that the State is faced with what at times must appear an insuperable burden. *fn1 Constitutional due process absolutely requires, however, that credible evidence subject to cross-examination be adduced before a court and jury before any accused can be convicted of a crime. Neither the State nor this Court is at liberty to change this.
ANNA'S STATEMENTS TO HER MOTHER
Hosford complains of Anna's statements to her mother on Monday when Mrs. Woodall picked her up, and on Tuesday when she told her what Mrs. Hosford had said to Hosford when he was molesting her. Because we are reversing this case for a new trial on other grounds, we do not address this assignment of error. Upon retrial the circuit judge should carefully evaluate the Tuesday statement by Anna to her mother and determine whether it is competent and admissible.
PREJUDICIAL EVIDENCE AND PROSECUTORIAL MISCONDUCT
Over strong objection and protest by defense counsel the State's attorney cross-examined Hosford about his physical abuse of Mrs. Hosford, and complaints made in Youth Court and with the county welfare department about his mistreatment of his stepchildren and Mrs. Hosford. Mrs. Hosford was also asked if Hosford had physically abused her, and about her complaints to the welfare department of physical abuse by her husband to her and the children. Then, in rebuttal the State offered Reece McCoy, an employee of the county welfare department who investigated child abuse matters. Over defense objection he was permitted to testify that his office had investigated and made two reports on violence in the Hosford family. The circuit judge did, however, refuse to permit the State to ask McCoy the details of the reports. This particular line of questioning dealt with alleged acts of violence of Hosford towards his wife and stepchildren, none intimating sexual conduct.
Again, over the objection of the defense, the State asked the following series of questions of Hosford:
A: I haven't fooled with nobody.
Q: You haven't fooled with nobody?
Q: You haven't fooled with Tabitha?
Q: You haven't fooled with Richard?
Q: You haven't fooled with Crystal?
Q: You haven't fooled with Angela?
Q: You have never made Tabitha place her mouth on your penis?
Q: So if she were to come in this courtroom and tell this jury that you made her do it, that would be a lie, too?
The State had made no effort during the presentation of its case in chief to present evidence of Hosford's violence toward his own family, or acts of sexual, deviant conduct with his stepchildren.
We first note that the State was obligated to present all relevant evidence bearing upon Hosford's guilt as part of its case in chief, not initially through cross-examination of the defendant and his witnesses, and then offering evidence of such conduct in ...