Opinion
No. 51133.
September 5, 1979. Rehearing Denied September 26, 1979.
Appeal from the Circuit Court, Harrison County, J. Ruble Griffin, J.
Robert E. Farish, Biloxi, for appellant.
A.F. Summer, Atty. Gen. by Marvin L. White, Jr., Sp. Asst. Atty. Gen., Jackson, for appellee.
Before SMITH, P.J., and SUGG and COFER, JJ.
The appellant was indicted of the act of fondling, made a crime by Mississippi Code Annotated, section 97-5-23 (1972), and thereon was tried and convicted in the Circuit Court of the Second Judicial District of Harrison County. Hence, this appeal.
In Tatro v. State, 372 So.2d 283 (Miss. 1979), we held this statute to be unconstitutional as discriminating against males, on the 30th day of May, 1979, and denied petition for rehearing thereon on the 11th day of July, 1979.
That decision controls here, and we have no choice, though reluctantly, but to reverse this cause and discharge the appellant on that conviction.
Although we reverse appellant's conviction for fondling, we hold the appellant for further action of the grand jury on the charge of attempted rape as set forth in section 97-1-7, Mississippi Code Annotated. (1972).
If the grand jury does not indict for attempted rape it may elect to indict the defendant for indecent exposure under section 97-29-31 Mississippi Code Annotated (1972), or any other charge growing out of the facts in the record.
Motion by appellant to declare the cause moot, to dismiss the appeal and for mandamus to release appellant is overruled.
REVERSED AND DISCHARGED ON CONVICTION OF FONDLING; HELD TO GRAND JURY FOR ITS FURTHER CONSIDERATION AND ACTION.
PATTERSON, C.J., SMITH and ROBERTSON, P. JJ., and WALKER, BROOM and LEE, JJ., concur.
SUGG and BOWLING, JJ., concur in part and dissent in part.
I concur in that portion of the opinion which directs that defendant be held to await the action of the grand jury. I dissent as to reversal for the reasons stated in my dissent in Tatro v. State, 372 So.2d 283 (Miss. 1979).
BOWLING, J., joins this opinion.