Love v. State

• Decision Date: 07 May 1951
• Docket Number: No. 37978,37978
• Parties: LOVE v. STATE.
• Court: Mississippi Supreme Court

Page 470

52 So.2d 470

211 Miss. 606

LOVE v. STATE.

No. 37978.

Supreme Court of Mississippi, Division A.

May 7, 1951.

Sandy R. & Calvin R. King, Durant, for appellant.

J. P. Coleman, Atty. Gen., Geo. H. Ethridge, Asst. Atty. Gen., for appellee.

ETHRIDGE, Commissioner.

There is here involved the sufficiency of an indictment for indecent assault on a female child which omits to charge that defendant was over the age of eighteen years, although the statute enumerates this as an element of the offense.

Appellant, John Thomas Love, was indicted, tried, and convicted at the September, 1950, term of the Circuit Court of Attala County, Mississippi, of the crime of indecent assault upon or violation of the person of a female child under the age of thirteen years, as set forth in Miss. Code of 1942, Sec. 2052. That statute provides in part as follows: 'Any male person above the age of eighteen years, who, for the purpose of gratifying his lust, or indulging his depraved licentious sexual desires, shall handle, touch or rub with hands or any part of his body or any member thereof, any female child under the age of thirteen years, with or without her consent, shall be guilty of a high crime * * *.'

The indictment charged as follows: 'That John Thomas Love, late of the county, aforesaid, on the 4th day of September, 1950, in the county and state aforesaid county and state aforesaid, and within the jurisdiction of this Court, did wilfully unlawfully and feloniously make an assault and battery upon the person of (naming her), a female child under the age of 13 years by touching the breasts of said child for the purpose of indulging his depraved licentious sexual desires against the peace and dignity of the State of Mississippi.'

This indictment omitted to charge that the appellant at the time of the offense was a 'male person above the age of eighteen years,' as the statute requires, although the proof showed that he was over that age. The state concedes that the age of appellant was a material element of the crime, but argues that, because there was no demurrer to the indictment, this defect can not be raised for the first time in this Court, citing Code Sec. 2449, which provides that 'All objections to an indictment for a defect appearing on the face thereof, shall be taken by demurrer * * * and not otherwise * * *.' However, this statute 'applies only to formal defects that may be amended without touching any matter of substance (and), does not apply to defects touching the substance, and * * * no averment of any indictment, which goes to the very essence of the offense, may be dispensed with by the state, or waived by the accused.' Kelly v. State, 1948, 204 Miss. 79, 36 So.2d 925. Hence the determination of whether appellant could waive that defect in the indictment depends upon ascertaining whether this factor (that appellant is a male person over the age of eighteen years) is an essential element of the offense.

Generally, the charge is sufficient if the indictment adopts and follows the language of the statute or is in language substantially equivalent to it. State v. Needham, 1938, 182 Miss. 663, 180 So. 786, 116 A.L.R. 1100. This offense of indecent assault upon a female child is a statutory and not a common law crime. Allen v. State, 1936, 175 Miss. 745, 166 So. 922. The statute expressly requires that the female child be under the age of thirteen years, and that the accused be a 'male person above the age of eighteen years'. No male under that age can be guilty of this crime. This element is an affirmative fact which must be charged and proved by the state. It is not a mere formality. As was said in Kelly v. State, supra, Code Sec. 2449 'was not intended to deprive any citizen accused of a felony of his right to have the nature and cause of the accusation preferred against him clearly and fully stated, and any abridgement of the right to be thus informed in any substantial particular would be unconstitutional * * *.' The fact that defendant is a male person above the age of eighteen years is a sine qua non of the crime. Hence the indictment is fatally defective for the failure to contain a charge of that necessary element. Appellant has a constitutional right to a plain and complete statement of the charge against him.

The established rule is stated in 27 Am.Jur., Indictments and Informations, Sec. 54, as follows: 'It is the constitutional right of the accused, under the organic law of the nation and of the several states, 'to be informed of the nature and cause of the accusation' against him, and under these provisions, the accused is entitled to a plain statement of the charge against him. It is fundamental, of course, that an indictment, to be effective as such, must set forth the constituent elements of a criminal offense; if the facts...