Thompson v. State

• Decision Date: 07 February 1921
• Docket Number: 21516
• Court: Mississippi Supreme Court
• Parties: THOMPSON v. STATE

86 So. 871

124 Miss. 463

THOMPSON v. STATE

No. 21516

Supreme Court of Mississippi

February 7, 1921

1 RAPE. Evidence sustaining conviction of assault with intent to ravish.

Where it appears from the evidence on the trial for assault with intent to ravish that the defendant knew that the prosecuting witness was at home alone, and he entered the house secretly and then knocked on the wall to attract and entice the female assaulted into a room in the back part of the house repeatedly knocking on the wall at intervals for a half hour or more to attract the attention of the female, and that when her attention was attracted she went into such room, and there found the defendant with face covered, approached her and caught her by the throat, and placed his other hand on her mouth and tried to push her against the wall, and when the female pushed his hand off mouth and screamed, he fled and afterwards denied being at the house, but on trial testified that he entered the house for the purpose of stealing, and where it appears that nothing was stolen or taken, though food and other things were in the house where he entered undisturbed, the evidence is sufficient to sustain a conviction of assault with intent to ravish.

2. CRIMINAL LAW. Court may call attention of jury to failure to assess punishment.

Where a jury returns a verdict of guilty as charged under section 1359, Code 1906 (Hemingway's Code, section 1096), without fixing the punishment, it is not error for the court to orally call their attention to such power, especially where the court has given written instructions thereon and request the jury to put their verdict in proper form.

3. CRIMINAL LAW. Where judgment below illegal, supreme court may impose sentence in proper form.

Where the judgment of the court below does not show that the defendant was placed at the bar of the court and sentenced in due form, but shows the verdict of the jury fixing the punishment and remands the prisoner to the custody of the sheriff until he is called for by the authorities of the state penitentiary, and where there is no other error in the trial court, this court will impose sentence in proper form under section 4919, Code 1906 (Hemingway's Code, section 3195).

HON. C C. MILLER, Judge.

APPEAL from circuit court of Lauderdale county, HON. C. C. MILLER, Judge.

Percy Thompson was convicted of an assault with intent to ravish, and he appeals. Affirmed.

Judgment affirmed.

C. B. Cameron, for appellant.

This appellant has assigned as error the refusal of court to grant him a peremptory instruction. This assignment I submit is well taken in the light of this record. The appellant should have been indicted, tried and convicted on a charge of trespass and not the charge preferred. There is not a single line of testimony in the record which bears out the charge and I am at a loss to understand why the learned trial judge ever submitted this cause to the jury.

The court erred in orally instructing the jury as shown by special bill of exceptions. The record clearly shows oral instructions by court and this in the face of decisions of this court condemning this practice. The court here actually told the jury to retire and change their verdict in two different instances. This cannot be countenanced by the law nor upheld by the court. The special bill of exceptions shown on page 80 of record discloses the fact that the trial court orally instructed the jury as to the punishment to be inflicted in the event of a conviction.

The jury had returned a verdict without fixing the punishment and the court orally instructed them as to the punishment and ordered the jury to retire, all of which was done over the objection of the appellant as shown by special bill of exceptions on pages 80 and 81 of record.

The jury retired and again returned a verdict into court convicting the appellant on charge in affidavit and fixing his punishment at life imprisonment. Thereupon the court at the instance of the district attorney orally examined the jury as to whether they meant to say indictment instead of affidavit, same being done over objection of the appellant; thereupon the court ordered the jury to retire and change their verdict. This done over the objection of the defendant, the jury retired and presently came into court with verdict of guilty as charged in the indictment and fixed punishment at imprisonment for life.

I submit that action of the court in orally instructing the jury was fatal error for two reasons. 1. The same is forbidden by section 793, of Code 1906, as construed by this court in numerous decisions. Watkins v. State, 60 Miss. 323; Baugs v. State, 61 Miss. 363; Williams v. State, 32 Miss. 389; Edwards v. State, 47 Miss. 581; Johnson v. State, 78 Miss. 627; Gilbert v. State, 78 Miss. 300. 2. The oral instruction as given was not a proper construction of section 1359, of Code of 1906, under which indictment was drawn. Section 1359 of Code 1906, reads: "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."

The court instructed the jury so shown by special bill of exceptions that the question of punishment was out of his hands entirely and that it was up to the jury to fix the punishment. This is incorrect. The statute fixes the punishment at imprisonment in the penitentiary for life, or for such shorter time as may be fixed by the jury.

In the case at bar the jury attempted to fix the punishment by their verdict at imprisonment for life, when the statute only conferred upon the jury the right to fix the punishment at and for a shorter time. In other words the jury had nothing to do with the punishment unless they agreed to fix the same for a shorter time than life imprisonment. By the instruction the jury was told that they should fix the punishment in event of a conviction at imprisonment in penitentiary not to exceed life. This is not the law, the statute under which indictment was drawn does not authorize this instruction.

The jury fixed the punishment at life imprisonment under these written and oral instructions and in so doing undertook to administer punishment already prescribed by statute and with which they were not concerned under the law. See case of Barton N. State, reported in 94 Miss. 375, where the court undertook to impose a sentence of five years in a case where the jury returned a verdict of guilty as charged in the indictment. This was held to be error by the court.

For these errors I respectfully submit that this cause should be reversed and remanded.

H. Cassedy Holden, attorney-general, for appellee.

The appellant complains that the verdict is contrary to the evidence. It is submitted that the testimony of the prosecutrix, if believed, makes out a case against the defendant, and is sufficient to convict. It is true she did not attempt to say what the motive of her assailant was. His purpose can be judged only by his actions. If he only entered the house to steal, why did he go into the residence instead of the store. If the theft was his sole purpose, why did he attack the prosecutrix, instead of simply making his escape when discovered. And why did he deny any connection with the occurrence when accused by Sheriff Martin?

A judgment will not be set aside on the ground that the verdict is contrary to the evidence unless it be clearly wrong and it is a case of palpable error, prejudice or passion. Gamblin v. State, 45 Miss. 658; Schwall v. State, 21 So. 660; Alexander v. State, 21 So. 923; Brown v. State, 103 Miss. 639, 60 So. 726; Simmons v. State, 109 Miss. 605, 68 So. 193; Wells v. State, 112 Miss. 76, 72 So. 859.

Where there is a palpable failure of the proof to sustain the verdict, a reversal will follow. White v. State, 2 Miss. Dec. 562; Porter v. State, 1 Miss. Dec. 555; Campbell v. State, 1 Miss. Dec. 413; Dennis v. State, 91 Miss. 221; Harris v. State, 71 Miss. 462, 14 So. 266; Monroe v. State, 71 Miss. 196, 13 So. 884; Jones v. State, 91 Miss. 868, 45 So. 145; Howell v. State, 104 Miss. 295, 61 So. 314; Hunt v. State, 108 Miss. 588, 67 So. 57.

The supreme court will not reverse merely because, if, sitting as a jury, it would have returned a different verdict. Brown v. State, 102 Miss. 639, 60 So. 726; Jackson v. State, 105 Miss. 782, 63 So. 269; Felder v. State, 108 Miss. 580, 67 So. 56.

No Error in Instructions. The appellant complains that the court erred in orally instructing the jury as shown by the special bill of exceptions at page 80 of the record. As to that part of the oral instructions relating to the fixing of the punishment by the jury, it is submitted there was no error. The court had already instructed the jury in writing that it was their duty to fix the punishment, not exceeding life imprisonment, when they returned simply verdict in accordance with the law as contained in the written instructions. If the written instruction at page 73 of the record be correct, then it was not error for the court to require the jury to return to the jury room and frame their verdict in accordance therewith.

The jury first returned this verdict: "We, the jury, find the defendant guilty as charged in the affidavit." As defendant was being tried on an indictment, this verdict was not in the proper form. It next returned this verdict "We, the jury, find the defendant guilty as charged in the affidavit and fix his punishment at imprisonment for life." For the same reason, this verdict was not in proper form. Whereupon the court polled the jury, and each juror responded that he meant to say "indictment" instead of "affidavit." The jury was, thereupon,...