Barton v. State

• Decision Date: 24 November 1908
• Docket Number: 13,609
• Citation: 94 Miss. 375,47 So. 521
• Court: Mississippi Supreme Court
• Parties: WILLIAM BARTON v. STATE OF MISSISSIPPI

47 So. 521

94 Miss. 375

WILLIAM BARTON v. STATE OF MISSISSIPPI

No. 13,609

Supreme Court of Mississippi

November 24, 1908

FROM the circuit of, first district, Yalobusha county, HON. SAMUEL C. COOK, Judge.

Barton appellant, was indicted and tried for assault with intent to commit rape upon Susan Barton, a woman of previous chaste character, was convicted, sentenced to the penitentiary for five years, and appealed to the supreme court.

The indictment was returned by the grand jury on February 11 1907. The evidence showed that the alleged crime was committed September 1, 1906. The indictment contains the following words: "Did with force then and there in and upon Susan Barton, a female person of previous chaste character, willfully, maliciously and feloniously assault the said Susan Barton with the intent of him, the said William Barton, then and there to forcibly ravish," etc.

Code 1906, § 1359, which became operative October 1, 1906, 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."

Prior to October 1, 1906, the law applicable to such an offense was contained in Code 1892, § 967, providing that persons convicted of assaults with intent, to commit rape should be punished by imprisonment in the penitentiary for a term of not more than ten years.

The jury returned a verdict of guilty as charged, and the court sentenced appellant to a term of five years' imprisonment in the penitentiary.

Reversed.

Isaac T. Blount, for appellant.

The indictment on which appellant was tried and convicted was returned into court by the grand jury, and marked filed, on February 11, 1907. It was clearly drawn under Code 1906 § 1359, and, as this court judicially knows, that code went into effect, and superseded the Code 1892, on October 1 1906. The evidence shows conclusively that the alleged crime, if committed at all, was committed September 1, 1906, one month before the Code of 1906 became operative.

Code 1906, § 1359, is new law in our state. It distinctly provides that the defendant, when found guilty, shall be punished by imprisonment in the penitentiary for life, unless the jury--not the trial judge--shall fix the imprisonment for a lesser period. It will be noted however that the jury in this case merely returned a verdict of "guilty as charged, " and did not fix any term of imprisonment at all.

The attention of the court is called to the fact that, as the crime was shown to have been committed on September 1, 1906, the only statute applicable, and under which indictment should have been drawn, if at all, is Code 1892, § 967. By examining the indictment in this case it is manifest that it was predicated not of Code 1892, § 967, but of Code 1906, § 1359. The attention of the court below was called to the point, but without effect.

George Butler, assistant attorney-general, for appellee.

The indictment was returned in February, 1907, and the appellant was tried at the ensuing July term of the court. Appellant's contention seems to be that under Code 1906, § 1359, it was the province of the jury to specify the punishment, or, at least, in case they did not, then the court could only sentence appellant to the penitentiary for life.

At the time the offense was committed, ...