Hickombottom v. State, 53025

• Decision Date: 17 February 1982
• Docket Number: No. 53025,53025
• Citation: 409 So.2d 1337
• Parties: Jewel HICKOMBOTTOM v. STATE of Mississippi.
• Court: Mississippi Supreme Court

Page 1337

409 So.2d 1337

Jewel HICKOMBOTTOM v. STATE of Mississippi.

No. 53025.

Supreme Court of Mississippi.

Feb. 17, 1982.

Thomas M. McNeely, Natchez, for appellant.

Bill Allain, Atty. Gen. by Frankie Walton White, Sp. Asst. Atty. Gen., Jackson, for appellee.

Before SUGG, WALKER and HAWKINS, JJ.

WALKER, Justice, for the Court:

This is an appeal from the Circuit Court of Adams County wherein the defendant, Jewel Hickombottom was convicted of rape and sentenced to serve a term of forty years in the Mississippi Department of Corrections. Feeling aggrieved, Hickombottom perfects this appeal.

The appellant makes the following assignments of error:

I.

THE COURT ERRED IN OVERRULING APPELLANT'S MOTION TO QUASH

THE INDICTMENT

There is no merit to this assignment of error because the indictment tracks Mississippi Code Annotated section 97-3-65 (Supp.1981) which deals with the crime of rape.

We have said on numerous occasions that where the indictment tracks the language of a criminal statute that it is sufficient to inform an accused of the charge against him. State v. Labella, 232 So.2d 354 (Miss.1970); Anthony v. State, 349 So.2d 1066 (Miss.1977). In Culberson v. State, 379 So.2d 499 (Miss.1979), this Court stated:

The language of the indictment was sufficient to apprise Culberson of the ... charge against him, thereby enabling him to prepare a defense to it, if any he had.

Mississippi now has a sexual battery statute, Mississippi Code Annotated section 97-3-95 (Supp.1981) which is a less severe offense than forcible rape and provides for a lesser penalty upon conviction.

The sexual battery statute, by its own terms, provides that it does not repeal or otherwise amend any existing statute.

The appellant argues that the sexual battery statute is so vague that it violates his constitutional guarantee of due process. However, it is not necessary for us to determine the validity of this argument since the appellant was indicted for and convicted of the crime of rape under section 97-3-65 (Supp.1981) and not sexual battery.

II.

THE LOWER COURT ERRED IN OVERRULING THE APPELLANT'S MOTION

TO EXCLUDEOUT-OF-COURT AND IN-COURT IDENTIFICATION

TESTIMONY AND FOR MISTRIAL.

There is no merit to this assignment of error. The trial court conducted a hearing outside the presence of the jury and made the following ruling:

Let the record show that Defendant's motion to exclude this testimony will be overruled, and his motion for mistrial based upon the witness having previously identified this Defendant now in front of the jury will be overruled for the reason that the Court is satisfied that the identification of the Defendant is based upon her original impression, there being no showing whatsoever that her identification has been tainted.

We have carefully examined the record with regard to the victim's identification of the appellant and are of the opinion that the trial court was eminently correct in its finding and that there is no substantial possibility of misidentification of the appellant. Considering the totality of the circumstances, the victim's identification of the appellant withstands the test under the criteria laid down in Neil v. Biggers, 409 U.S. 188, 93 S.Ct. 375, 34 L.Ed.2d 401 (1972) and Manson v. Brathwaite, 432 U.S. 98, 97 S.Ct. 2243, 53 L.Ed.2d 140 (1977).

III.

THE LOWER COURT ERRED IN OVERRULING APPELLANT'S MOTION FOR A

DIRECTED VERDICT.

This assignment of error is without merit. There was more than ample evidence upon which the jury could find that the victim submitted because of "fear arising out of a reasonable apprehension of great bodily harm," under the rule of Fields v. State, 293 So.2d 430, 432 (Miss.1974), and Rush v. State, 301 So.2d 297 (Miss.1974). There was also abundant evidence to justify the jury in finding that the appellant was the person who committed forcible rape on the victim.

IV.

THE LOWER COURT ERRED IN GIVING STATE INSTRUCTIONS S-2 AND

S-5, CONTRARY TO LAWAND WHEREIN THE JURY WAS

CONFUSED AND MISLED. DEFENDANT'S

INSTRUCTION NO.D-5 SHOULD HAVE

BEEN GIVEN.

In determining whether error lies in the granting or refusal of various instructions, the instructions actually given must be read as a whole. When so read, if the instructions fairly announce the law of the case and create no injustice, no reversible error will be found. Knight v. State, 57 So.2d 161 (Miss.1952), and Norman v. State, 385 So.2d 1298 (Miss.1980). We have carefully considered all of the instructions and are of the opinion that the jury was amply and fairly instructed as to the law with reference to the crime of rape and that the appellant was not denied any instruction to which he was entitled. The jury was given several alternatives as to their verdict, one of which was "If you find the Defendant guilty of rape, but are unable to fix the penalty, the form of your verdict may read: 'We, the Jury, find the defendant guilty, but are unable to fix the penalty.' " After deliberating for approximately two hours, the jury chose not to fix the penalty...