Hicks v. State

• Decision Date: 11 December 1922
• Docket Number: 22874
• Court: Mississippi Supreme Court
• Parties: HICKS et al. v. STATE

94 So. 218

130 Miss. 411

HICKS et al. v. STATE

No. 22874

Supreme Court of Mississippi

December 11, 1922

APPEAL from circuit court of Madison county, HON. W. H. POTTER Judge.

RAPE. Chastity of female not element of offense and need not be alleged in prosecution for attempt to rape female of previous chaste character; separate offense from assault to rape female not of previous chaste character.

An indictment under section 1049, Code of 1906, Hemingway's Code, section 777, for an attempt to rape, need not allege that the female was of previous chaste character, as chastity is not an element of the offense, nor is the subject of attempted rape entirely excepted out of this section by section 1359, Code of 1906. Hemingway's Code, section 1096, but said section carves a separate offense out of an attempt to rape a female, of previous chaste character. Repeals by implication are not favored, and there is no conflict in the two statutes, and it is still a violation of section 1049, Code of 1906, Hemingway's Code, section 777, to attempt to rape a female not of previous chaste character.

HON. W H. POTTER, Judge.

APPEAL from circuit court of Madison county, HON. W. H. POTTER Judge.

Walter Hicks and another were convicted of assault with intent to ravish, and they appeal. Affirmed.

Judgment affirmed.

C. N. Floyd and Powell & Harper, for appellants.

The crime charged in this indictment, in the case at bar is an assault with intent to rape. The only possible sections under which it might be brought are 1043 1049, 1358, 1359, or the Laws of 1914, page 219. It is plainly evident that it could not have been brought under 1043, for the reason that this only applies in a case of assault and battery with a deadly weapon or force likely to produce death. In this case there was no evidence to show that a deadly weapon was used or force likely to produce death.

Section 1358 of Code of 1906, as amended by the Laws of 1908, chapter 171, page 187, defines the crime of rape upon a female under or over the age of twelve years. A careful reading of the statute, supra, will clearly show that the said statute applies only to cases where the crime of rape was perpetrated and not to an assault with intent to rape. And our indictment specifically charges only an assault with intent to rape. Laws of 1914, chapter 171, page 219, raises the age of consent to eighteen years, where rape has been committed on an unmarried female of previous chaste character by a person older than herself. Our indictment cannot be sustained under this statute: first, in that the defendants were not charged with rape, but with assault with intent to rape, and the statute only applies to acts consummating in rape; second, in that it fails to allege that the female was of previous chaste character; third, in that it does not allege that the defendants were older than the female.

Section 1049 of the Code of 1906, provides as follows: "Every person who shall design and endeavor to commit an offense, and shall do any overt act towards the commission thereof, but shall fail therein, or shall be prevented from committing the same, on conviction thereof, shall, where no provision is made by law for the punishment of such offense, be punished as follows:" etc.

The indictment, in the case at bar, seems to have been drawn under a blended idea of sections 1049 and 1358. We have shown, supra, that the indictment could not be sustained under section 1358 alone. Now can it be sustained under the blended idea of 1049 and 1358?

Our contention is that it cannot, in that section 1049 expressly says that it does not apply, where there is another provision for the punishment of the offense. We contend that the indictment should have been brought under and only under section 1359 of Code of 1906, 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 for life, or for such shorter time as may be fixed by the jury."

Clearly section 1359 provides a punishment for the crime charged in the indictment and under the express provision of section 1049 it cannot apply in the face of another provision, such as is section 1359. Further, we contend that section 1049 is a general statute, applying to all attempts, while section 1359 is a special statute in regard to attempt to rape only. The law seems to be that a special statute will prevail over the general statute. 36 Cyc. 1151; Sutherland on Statutory Construction, at page 412.

Upon an examination of the time of the passage of these two sections, it will be discovered that section 1049 appears as far back as the Code of 1880, while section 1359 appears for the first time in the Code of 1906 and does not appear in any of the biennial laws prior to Code of 1906. From this it would appear that the legislature had intended to carve out of the general statute the crime of assault with intent to ravish and to make it specific, and such being the intention of the legislature it would seem that it intended that such prosecutions should be conducted under the specific section 1359, only, especially in view of the rule that penal statutes are strictly construed against the state and liberally in favor of the person charged. 36 Cyc. 1151.

The most, against our contention, that can be said is that we have two statutes in regard to the same offense. In 25 R. C. L., page 1055, in regard to construction of criminal statutes, the following is to be found: "Statutes in relation to the same offense must be taken together and construed as if the matters to which they relate were embraced in a single statute." See also, 36 Cyc. 1147. If sections 1049 and 1359 are taken together, we are confident that this court will hold that every essential of the crime, as set out in 1359 must be charged in the indictment.

It seems impossible that this indictment can be sustained unless it contains all the elements of the crime as defined in section 1359, in view of the fact that this direct enactment of the legislature in regard to the specific crime, and must be followed in the indictment. The statutory definition of the crime of assault with intent to rape was not complied with.

We have shown, supra, that section 1359, is the only statute under which this indictment could be drawn, and we would now call the court's attention to the fact that the indictment fails to charge that the female was of previous chaste character, which is made a constituent element of the crime by section 1359, and an indictment must contain all the constituent elements of the crime. Ward v. State, 70 Miss. 245, at 246.

In Froest v. State, 94 Miss. 104, at 107, Judge FLETCHER, speaking for the court said: "This proceeding was, of course, based upon section 1359 of the Code of 1906, applying only to cases where the female is of previous chaste character. In order to convict under this statute the indictment must allege the previous chastity of the female assaulted."

In Wyche v. State, 124 Miss. 736, we find: "The indictment can be sustained, also under section 1043 of 1906, same being section 771 of Hemingway's Code."

Section 1359, Code of 1906, same being section 1096 of Hemingway's Code, including the title is as follows: "Assault with intent to rape. 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."

Under the foregoing section there must be an assault with intent to ravish a female of previous chaste character and the state is aware of the numerous decisions of this court holding that an indictment under this section must allege the previous chaste character, and that same must be proven as alleged. Wyche v. State, 87 So. 286. But in all these cases the indictment charged an assault with the intent to forcibly ravish, and following the exact language of the foregoing statute, which does not deal with an attempt to commit the crime of rape. An examination of the indictment in the case at bar readily discloses that the district attorney in drawing the indictment proceeded under section 1049, Code of 1906, section 777, Hemingway's Code, which makes it a crime to attempt to commit an offense. And also section 1358 of the Code of 1906, section 1092, Hemingway's Code, which deals with the crime of rape. I respectfully call the court's attention to the fact that the indictment herein nowhere contained the word "intent," or the expression "assault with intent," but that throughout the indictment the word "attempt" is employed.

Counsel for appellant insists that inasmuch as the legislature has enacted section 1359 of the Code of 1906, section 1096, Hemingway's Code, relating to assault with intent to ravish, that a prosecution under the attempt statute cannot stand as to an attempt to commit rape, because their theory is that this is a general statute, and section 1359, Code of 1906, section 1096, Hemingway's Code, being a special statute, must be followed. In this I differ from counsel. They fall into error in failing to distinguish between an attempt to commit rape, and an assault with intent to ravish. "Under section 1359, Code 1906 (section 1096, Hemingway's Code), the indictment must allege and the state must prove previous chaste character of the female assaulted. "

Under decisions, supra, and section 1359 of Code of 1906, itself, the indictment in the case at bar was void and the conviction a nullity.

H. Talbot Odom, for appellee.

Counsel state that the indictment in this case was evidently based on either one or some of the following statutes, to-wit: Section...