Pew v. State

• Decision Date: 27 May 1935
• Docket Number: 31611
• Citation: 172 Miss. 885,161 So. 678
• Court: Mississippi Supreme Court
• Parties: PEW v. STATE

161 So. 678

172 Miss. 885

PEW v. STATE

No. 31611

Supreme Court of Mississippi

May 27, 1935

(In Banc, )

RAPE.

Evidence that defendant laid hands on shoulder and throat of female and that he turned her loose and ran when she continued to scream, held insufficient to sustain conviction for assault with intent to rape (Code 1930, section 1125).

HON. W J. PACK, Judge.

APPEAL from the circuit court of Forrest county, HON. W. J. PACK Judge.

James Pew was convicted of an assault with intent to forcibly ravish a female of previous chaste character, and he appeals. Reversed and remanded.

Reversed and remanded.

Hearst & Pittman, of Hattiesburg, for appellant.

The indictment does not charge the offense. To charge attempted rape is void.

As well as charging an intent to commit a crime, it is necessary to charge the commission of an overt act done toward the accomplishment of that crime.

Sims v. State, 149 Miss. 167.

As to the insufficiency of evidence, little need be said upon this point. It was between eight and nine o'clock in the morning in a public place, where people were constantly passing. The defendant is a fourteen year old boy. Mrs. Bradley was passing with a purse in one hand and some groceries in the other. The boy caught her by the shoulder. She screamed. He told her to stop screaming and caught her by her throat. She stepped back, continued screaming and he ran. If he had been indicted for attempted robbery there might be some excuse to argue that his acts were done in furtherance of a design to rob her of her purse or the groceries; but it would seem to an impertinence to argue that they did not manifest an intent to rape the woman there in the morning sunlight, within a stone's throw of any number of people, at a place which was in sight of her residence.

W. D. Conn, Jr., Assistant Attorney-General, for the state.

The indictment charged that the accused committed "an assault and battery" upon prosecutrix, with the intent, etc., to rape her. This indictment is substantially the same as the one which this court approved in Barnes v. State, 164 Miss. 126, 143 So. 475.

In passing upon the facts of a charge of rape or attempt, the particular facts and circumstances of each case are to govern and no precise rule as to what acts will constitute rape or an attempt can be stated. This is to be determined by the facts of each case.

Easterling v. State, 120 Miss. 404, 82 So. 306.

If it was sufficient to take the case to the jury, it cannot be said now that the evidence does not support the verdict or that the verdict is against the overwhelming weight of the evidence.

Justice v. State, 154 So. 265; Thompson v. State, 124 Miss. 463, 86 So. 871.

OPINION

PER CURIAM:

Appellant, James Pew, was indicted and convicted of an assault with intent to forcibly ravish a female of previous chaste character; the indictment being drawn under section 1125, Code of 1930.

The evidence offered by the state was to the effect that the assault occurred about eight-thirty o'clock in the morning, at a point near the business section of the city of Hattiesburg. The place where the assault occurred is described as being on a footpath under a trestle of the G. & S. I. Railroad, which runs between Main street and Short Bay street in the city of Hattiesburg, this path leading from Short Bay street to Main street. The trestle under which the assault is alleged to have occurred is only a short distance from Short Bay street on one side and Main street on the other, but the footpath which leads under the trestle was somewhat secluded on account of bushes and shrubbery which were growing on the surrounding embankment.

The prosecuting witness testified that she was returning from a store on Main street to her home on Short Bay street, having...