Rhymes v. State
Decision Date | 22 March 1978 |
Docket Number | No. 50327,50327 |
Citation | 356 So.2d 1165 |
Parties | J. Q. RHYMES v. STATE of Mississippi. |
Court | Mississippi Supreme Court |
Houghton F. Elias, Jr., Cleveland, for appellant.
A. F. Summer, Atty. Gen., by Robert D. Findley, Sp. Asst. Atty. Gen., Jackson, for appellee.
Before SMITH, ROBERTSON and LEE, JJ.
LEE, Justice, for the Court:
J. Q. Rhymes was convicted in the Circuit Court of Bolivar County for rape of his seven-year-old daughter and was sentenced to life imprisonment, from which conviction and sentence he appeals.
I.
Appellant contends that the trial court erred in that the indictment was fatally defective and omitted an essential element of the crime charged against him.
The indictment charged the following:
"That J. Q. Rhymes . . . on the 12th day of March A.D., 1976 . . . did then and there wilfully, unlawfully and feloniously make an assault in and upon the body of one . . . (name omitted) and he the said J. Q. Rhymes, was then and there a male person, and she the said Myra Katrana Brooks was then and there a female child under the age of 12 years; and he, the said J. Q. Rhymes, did then and there wilfully, unlawfully and feloniously rape, ravish and carnally know the said Myra Katrana Brooks, in violation of Section 97-3-65(1) of the Mississippi Code Annotated (1972)."
Appellant argues that the indictment charges he violated Section 97-3-65(1), Mississippi Code Annotated (1972), without adding the words "as amended." Further, that Section 97-3-65 was the pertinent section of Mississippi Code Annotated (1972), and that Section 97-3-65(1), which was in effect at the time of the alleged crime, was an amendment to Mississippi Code Annotated (1972) by the 1974 Supplement.
Section 97-3-65 provided punishment for rape of a female child under the age of twelve (12) years at death, unless the jury fixed the punishment at imprisonment in the penitentiary for life. Section 97-3-65(1) fixes the punishment at death with no provision for life imprisonment. Section 99-17-20, Mississippi Code Annotated (1972), as amended by the 1976 Supplement, provides that where a crime is punishable by death, the offense shall be specifically cited in the indictment by setting forth the section and subsection number of the Code defining the offense alleged to have been committed by the accused and that any conviction for such offense shall not be valid unless the offense shall have been set forth in the indictment by section and subsection.
In Bell v. State, 353 So.2d 1141 (Miss.1977), the trial court permitted amendment of the indictment in order to include the section and subsection of Mississippi Code Annotated section 97-3-19(2)(e) (Supp.1977), as amended, to comply with Section 99-17-20, and said:
The purpose of referring to the section and subsection is to inform the defendant specifically of the charge against him. Appellant admits that the indictment would have been sufficient, if the two words "as amended" had been added following the reference to "Mississippi Code Annotated (1972)." However, when appellant turned to Section 97-3-65, Mississippi Code Annotated (1972), he immediately was put on notice that the section had been amended and that he should turn to the supplement for the amendment.
In Westmoreland v. State, 246 So.2d 487 (Miss.1971), the Court cited with approval the following statement from 41 Am.Jur.2d Indictments and Informations § 88 (1968):
"In some jurisdictions, there are statutes providing that the statutory provision alleged to have been violated shall be set forth, and it has been held that a statute providing that it shall be sufficient to charge the defendant by using the name and article number of the offense committed is void, but citation of the wrong statute in an indictment or information will be treated as mere surplusage when objection thereto is first raised on appeal unless it appears that defendant was misled or prejudiced." (Emphasis added). 246 So.2d at 492.
The Eighth Circuit Court of Appeals discussed the question in Jackson v. United States, 325 F.2d 477 (8th Cir. 1963), and said:
Appellant made no objection to the sufficiency of the indictment nor did he challenge its validity in the trial court by demurrer or otherwise. We are of the opinion that a citation to an existing Code section includes all amendments thereto then in force, that the indictment was amendable and that, if defective at all, it was only a formal defect, which, if properly brought to the attention of the court, would have been amended. We note that in Jackson v. State, 337 So.2d 1242 (Miss.1976), this Court considered the effect of Section 99-17-20 insofar as it pertained to granting instructions in a capital case and stated:
"We have concluded that the provision of section 99-17-20 prohibiting the granting of jury instructions as to lesser included offenses, constitutes an impediment to full and complete administration of justice in the trial of capital cases and is therefore not binding on the courts in the trial of these cases.
We therefore hold that, when warranted by the evidence, the trial court may instruct the jury with reference to lesser included offenses. However, such an instruction should not be indiscriminately or automatically given, as was condemned in Roberts (v. Louisiana) supra, 428 U.S. (325) at 334, 96 S.Ct. (3001) at 3007, 49 L.Ed.2d (974) at 982, but should only be given after the trial court has carefully considered the evidence and is of the opinion that such an instruction is justified by the evidence." 337 So.2d at 1255.
We hold that appellant was adequately informed of the charge against him, that Section 99-17-20 was substantially complied with, and that no prejudice resulted to appellant by failure to include the words "as amended" after reference to the section and subsection of the Mississippi Code of 1972.
Appellant contends that the indictment was also defective for the reason that it did not charge appellant's age to be above eighteen (18) years. The statute provides a lesser sentence for an accused whose age is between thirteen (13) and eighteen (18) years. The amended Section 97-3-65(1) simply modified the punishment prescribed for a person within such age limits. The proof was undisputed that appellant was thirty-two (32) years of age at the time of the crime and the reduction of punishment as to persons within the 13 to 18 age group could not be prejudicial to appellant. Moreover, the trial court declined to submit the case to the jury on the death penalty.
We are of the opinion that the indictment was sufficient and valid and that there is no merit to assigned error No. I.
II.
Appellant contends that the court erred in failing to examine the prosecutrix to determine her competency as a witness.
The child was seven (7) years old at the time of the crime and eight (8) years old at the time of trial. Appellant did not request the court to examine this witness in the absence of the jury to determine whether she understood the significance of an oath or whether she was otherwise qualified. The record does not indicate that she was not qualified to testify on account of her age. Appellant urges us to declare a new procedure through this Court's inherent rule-making power whereby trial court judges would be required to personally examine child witnesses before allowing them to testify. We note through experience that usually trial judges do satisfy themselves children of tender age are competent and...
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