Duggan v. State, 46603
| Decision Date | 04 January 1972 |
| Docket Number | No. 46603,46603 |
| Citation | 256 So.2d 511 |
| Parties | James Ernest DUGGAN v. STATE of Mississippi. |
| Court | Mississippi Supreme Court |
Carter & Carter, Columbus, for appellant.
A. F. Summer, Atty. Gen., by Karen Gilfoy, Special Asst. Atty. Gen., Jackson, for appellee.
James Ernest Duggan was indicted in the Circuit Court of Lowndes County upon a charge of assault with intent to ravish as defined in Mississippi Code 1942 Annotated section 2361 (Supp.1971). Following his plea of not guilty, he was tried and convicted of that offense, and has appealed. The single question presented is whether appellant was denied his right to have the jury fix his punishment as provided by that section, which reads:
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, or by the court upon the entry of a plea of guilty.
The State obtained an instruction containing the following language:
(T)hen you may find the defendant guilty of assault with intent to rape, and the form of your verdict will be:
'We, the jury, find the defendant guilty of assault with intent to rape and fix his punishment as imprisonment in the penitentiary for life.' or
'We, the jury, find the defendant guilty of assault with intent to rape and fix his punishment as imprisonment in the penitentiary for _ _ years.'
filling in the number of years as fixed by the jury-in the blank.
Writing your verdict on a separate sheet of paper.
Upon the conclusion of the trial, the jury received the court's instructions and retired. After a time, the jury communicated to the court a desire for further instruction. The court declined to instruct the jury further upon the ground that no authority exists under Mississippi law for the giving of oral instructions by the court, or any instructions except such as are requested in writing by the parties, and directed the jury to resume its deliberations.
Presently, the jury returned into open court the following verdict:
We, the jury, find the defendant guilty of assault with intent to rape and fix his punishment as imprisonment in the penitentiary for not more than five years.
Whereupon, appellant's counsel requested that the jury be polled as to whether five years was the verdict of each juror. The court declined to do this but offered to poll the members of the jury as to whether each had concurred in the verdict as written.
The court then sentenced appellant to serve a term of five years in the penitentiary.
It was error to construe the jury's verdict in the form in which it was returned as having fixed the term of imprisonment at five years. Appellant was entitled, under the express and unequivocal terms of the statute, to have the jury fix definitely the length of...
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Jordan v. State
...United States v. Lee, 532 F.2d 911, 913 (3rd Cir. 1976); Cook v. United States, 379 F.2d 966, 968 (5th Cir.1967); Duggan v. State, 256 So.2d 511 (Miss.1972); Owens v. State, 82 Miss. 18, 33 So. 718, 720 (1903). He argues that the jury's verdict was not clear and unambiguous since the jury d......
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Newell v. State
...the jury, he must instruct correctly, but if not requested to instruct, then the jury is left totally uninstructed. In Duggan v. State, 256 So.2d 511 (Miss.1972), we repeated in reversing the case that no authority exists under our law for the giving of instructions by the court except as r......