Opinion
No. 34581.
June 9, 1941.
1. CRIMINAL LAW.
Where indictment charged defendant with an assault with intent to ravish a female of previous chaste character of age of fourteen years, trial court erred in treating indictment as if drawn under general attempt statute (Code 1930, secs. 793, 1125).
2. CRIMINAL LAW.
Where statute under which defendant was convicted provided for punishment by imprisonment in penitentiary for life, or for such shorter time as may be fixed by jury, trial court was without power to impose a sentence for one year's imprisonment, unless such had been fixed by jury trying case (Code 1930, sec. 1125).
APPEAL from the circuit court of Neshoba county, HON. PERCY M. LEE, Judge.
W.T. Weir, of Philadelphia, for appellant.
The lower court should have sustained the demurrer to the indictment since it appears from the wording of the indictment that this case was brought under Section 1125 of the 1930 Code and tried thereunder, and thus falls within the decision of the court in the case of Barton v. State, 47 So. 521, 94 Miss. 373.
The indictment does not allege that the female was assaulted at a time when she was under the age of consent unless the court can take judicial knowledge from the reading of the indictment that she was under the age of consent by a statement of her age being fourteen years, etc.
Alfred v. State, 32 So. 54.
In this case the jury was not advised of their duty in fixing the sentence, nor were they instructed as to the result of their verdict by returning a verdict of guilty as charged. Had the jury been properly instructed they might have and could have fixed the punishment for less than one year. We do not know what they would have done, it is true, but we believe it was reversible error to fail to charge the jury in this respect.
Sec. 1125, Code 1930; Barton v. State, 47 So. 521. Geo. H. Ethridge, Assistant Attorney-General, for the State.
The defendant procured a number of instructions fully covering the law in his behalf.
The demurrer to the indictment is without merit. It is true the indictment descends to particulars that are unnecessary and sets forth not only the ultimate facts upon which the prosecution is based but the evidentiary facts also. It is not necessary, under the statute, to specify the particular age of the prosecutrix, if she was in fact, as alleged in the indictment, between the ages of twelve and eighteen years, but the indictment does show that she was fourteen years of age; and alleges that she was of previous chaste character, and she testified to both facts before the jury. It was not necessary for the indictment to set forth the facts constituting the evidence to sustain the charge, and it did many of these, although not required to do so. If the facts in the indictment are true, of course, the appellant is guilty. The jury found upon competent evidence that they were true. There is no disputing the fact that the prosecuting witness was a female of previous chaste character, and the burden was upon the defendant to disprove this or at least to produce some proof from which it would be inferred, and he stood entirely upon his alibi, and, consequently, the judgment must be affirmed.
The indictment charged the defendant with an assault with intent to ravish a female of previous chaste character, of the age of fourteen years, and is drawn under Code of 1930, section 1125, which is as follows: "Every person who shall be convicted of an assault with intent to forcibly ravish any female of previous chaste character shall be punished by imprisonment in the penitentiary for life, or for such shorter time as may be fixed by the jury."
The evidence discloses a case for the determination of the jury, which returned a verdict of guilty as charged. The trial court thereupon sentenced the defendant to serve a term of one year in the state penitentiary.
While the Code of 1930, section 793, defines the crime of attempt, and provides punishment for its violation, this section does not include the specific crime defined in section 1125 which, in line with the purpose of the two preceding sections, contemplates assaults upon a female of previous chaste character. This element of the offense was specifically charged in the indictment, and the evidence and instructions of the state were made to conform thereto.
It was error, therefore, for the trial court to treat the indictment as if drawn under the attempt statute (section 793). Hicks v. State, 130 Miss. 411, 94 So. 218; Watkins v. State, 134 Miss. 211, 98 So. 537.
The only instruction given for the state, drawn in conformity with the indictment, provided that upon a finding of guilt it would be the duty of the jury "to so find and return the following verdict `We the jury find the defendant guilty as charged.'" Inasmuch as under section 1125 a convicted defendant, "shall be punished by imprisonment in the penitentiary for life, or for such shorter time as may be fixed by the jury," the trial court was without power to impose a sentence of one year's imprisonment unless such had been fixed by the jury trying the case. Barton v. State, 94 Miss. 375, 47 So. 521.
Reversed and remanded.