Smith v. State, 52991
| Decision Date | 14 October 1981 |
| Docket Number | No. 52991,52991 |
| Parties | Ronnie Edward SMITH v. STATE of Mississippi. |
| Court | Mississippi Supreme Court |
Johnson & Mills, Jerry L. Mills, Clinton, for appellant.
Bill Allain, Atty. Gen. by Frankie Walton White, Sp. Asst. Atty. Gen., Jackson, for appellee.
Before ROBERTSON, P. J., and BROOM and HAWKINS, JJ.
This is an appeal from the Circuit Court of the First Judicial District of Hinds County, wherein Ronnie Edward Smith was indicted, tried and convicted of the June 12, 1980, rape of the 21-year-old prosecutrix.
Smith was sentenced to a term of 30 years in the Mississippi Department of Corrections, with 5 years suspended.
Smith appeals, assigning as error:
The indictment in this case failed to adequately advise the Appellant of the nature and cause of the accusation against him with sufficient certainty, clarity and particularity as is required by Section 26 of the Mississippi Constitution of 1890.
The indictment is drawn in strict conformity with the statute, MCA section 97-3-65(2) (Supp. 1980). Only one act of rape is charged. The contention of Smith is that at the trial, the prosecutrix testified that she was raped twice by Smith, and that the indictment does not specify which act he is being charged with.
The record contains no objection to the indictment on any ground, nor was there any objection to the testimony as to two acts of rape.
In Salisbury v. State, 293 So.2d 434 (Miss. 1974), we said that only where an indictment fails to charge an offense may an objection thereto be made for the first time on appeal.
However, we will consider this assignment of error on the merits.
As the prosecutrix finished studying around 1:00 a.m. on June 12, 1980, and walked down the hall to the bathroom, she noticed Smith coming out of the bathroom toward her bedroom. She ran into her father's room, screaming that someone was in the house, and as her father began getting up from his bed Smith entered his bedroom and ordered him to remain seated. Defendant, armed with a pistol, bound and gagged her father and ordered prosecutrix and her 4-year-old son into her bedroom.
Defendant then entered the bedroom and, after threatening the child, raped the prosecutrix. He then got up and went to the other side of the house. He returned shortly thereafter and raped the prosecutrix again. The defendant fell asleep. Police were summoned. They arrested the defendant and seized the weapon. The prosecutrix was examined around 5:00 a.m. at the University Medical Center. Examination revealed recent sexual intercourse.
Although defendant did not testify at his trial, he did admit when he was arrested that he remembered going to the residence of the prosecutrix, knocking on the door, and when he received no response he entered the house through an open window. He remembered kissing a woman, but did not remember anything further and did not remember having a pistol with him.
In Turnbow v. State, 454 P.2d 674 (Okl.Cr.1969), the Court of Criminal Appeals of Oklahoma rejected the contention that the trial court had erred in not requiring the state to elect between two acts of rape occurring on the same date, and held:
In Lee v. State, 242 Miss. 97, 134 So.2d 145 (1961), the prosecutrix was raped by two escaped inmates at her home. Holding the evidence of defendant's accomplice's...
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