Opinion
No. 38629.
February 9, 1953.
1. Criminal law — attempt to rape — overt act.
In a prosecution for attempt to rape, an overt act toward the commission of the offense must be sufficiently shown. Sec. 2017, Code 1942.
Headnote as approved by Arrington, J.
APPEAL from the circuit court of Marion County; SEBE DALE, Judge.
Davis Davis, for appellant.
I. The overt act charged against the appellant is not sufficient to show an attempt to rape and the indictment therefore fails to charge any offense known to the law and the demurrer to said indictment should have been sustained. Sec. 2017, Code 1942; Green v. State, 67 Miss. 356, 7 So. 326; State v. Lindsey, 202 Miss. 895, 32 So.2d 877.
II. Neither the indictment nor the instruction for the State charges that the assault was made feloniously, and the indictment and the instructions for the State fail to charge the appellant with any intent to rape. Sec. 2017, Code 1942; Jones v. State, 172 Miss. 597, 161 So. 143; Miller v. State 130 Miss. 730, 95 So. 83; Stokes v. State, 92 Miss. 415, 46 So. 627, 21 L.R.A. (N.S.) 898; Watkins v. State, 134 Miss. 211, 98 So. 537.
III. The instruction for the State was erroneous and misleading, and for the further reason that same instructed the jury in effect, that it had only to make a finding of intent on the part of the appellant to return a verdict of guilty. Molphus v. State, 124 Miss. 584, 87 So. 133.
IV. It was error to refuse to permit the appellant to show a motive for this prosecution.
V. The questions asked the appellant about his discharge on cross-examination and the statement by the court about same and the closing argument made by the district attorney was extremely prejudicial to the extent that the jury could not render a fair, unbiased, and impartial verdict, and, therefore, constitutes reversible error. Murray v. State, (Miss.), 52 So.2d 288.
VI. There was no evidence in this case to support a verdict of guilty. Green v. State, 67 Miss. 356, 7 So. 326; Pew v. State, 172 Miss. 885, 161 So. 678; Spurlock v. State, 158 Miss. 280, 130 So. 155, 156; State v. Lindsey, 202 Miss. 895, 32 So.2d 877.
Geo. H. Ethridge, Assistant Attorney General, for appellee.
The appellant was indicted and convicted of an attempt to rape and sentenced to the penitentiary for a term of two years. From that judgment, he appeals.
We have carefully examined the record in this case and find that the testimony is insufficient to establish an overt act toward the commission of the offense charged, as required under the statute. Sec. 2017, Miss. Code 1942. State v. Lindsey, 202 Miss. 896, 32 So.2d 876.
The requested peremptory instruction should have been granted.
Reversed and appellant discharged.
McGehee, C.J., and Hall, Lee, and Ethridge, JJ., concur.