Tillman v. State

• Court: Mississippi Supreme Court
• Writing for the Court: Cook, J.
• Citation: Tillman v. State, 158 Miss. 802, 131 So. 265 (Miss. 1930)
• Decision Date: 08 December 1930
• Docket Number: 29026
• Parties: TILLMAN v. STATE

131 So. 265

158 Miss. 802

TILLMAN v. STATE

No. 29026

Supreme Court of Mississippi

December 8, 1930

Division A

1 RAPE. Indictment alleging attempt to commit rape forcibly and against will of injured female held to sufficiently charge offense (Code 1930, section 1122).

Code 1930, section 1122, provides that every person who shall be convicted of rape by forcibly ravishing any female of the age of twelve years and upward shall be punished in accordance with the statute. Indictment charged that defendant did attempt to willfully, unlawfully, and against the will and consent of named person, a female child of the age of eleven years, rape, ravish, and carnally know such female child.

2 RAPE.

Where rape or attempted rape is charged to have been forcible and against female's will and proof supports such charge, age of female need not be proved (Code 1930, section 1122).

3 RAPE. Variance between allegations of indictment, charging attempted rape, and proof in matter of name of prosecutrix, held not fatal.

Indictment alleged name of injured female to be "Maggie Hartley," while proof showed that her name was "Maggie Hardy." When variance was developed in the proof, indictment was amended so as to give correct name of prosecutrix. There was no uncertainty in matter of identity and defendant was not misled.

4. INDIOTMENT AND INFORMATION.

Formal written motion to amend indictment field at trial, because of variance with proof, and order sustaining motion, held sufficient as amendment.

HON. E. J. SIMMONS, Judge.

APPEAL from circuit court of Copiah county, HON. E. J. SIMMONS, Judge.

Mellie Tillman was convicted of an attempt to rape a female child under the age of twelve years, and he appeals. Affirmed.

Judgment affirmed.

J. F. Guynes, of Hazlehurst, for appellant.

It would be idle to say that even though the indictment must charge and the proof must show the injured party was under twelve years of age, yet the sole instruction for the state is good when it charges them to convict if they believe he is guilty under the second clause of section 1147, of Hemingway's Code of 1927, that is, regardless of the age.

Instructions for the defendant do not cure this error.

There was a fatal variance between the indictment and the proof as to name of the injured party.

The indictment sets out that Maggie Hartley was the injured party. Maggie's testimony, that of Rhea, Ella Hall, all show the correct and the only one by which she was known, was Maggie Hardy.

This was fatal variance.

McBerth v. State, 50 Miss. 81.

Edwin R. Holmes, Jr., Assistant Attorney-General, for the state.

The statute section 1922, Code of 1930, sets out one offense, namely, the crime of rape and defines it in three parts. If one were guilty under all three of the definitions of rape he would, nevertheless, be guilty of the crime of rape and subject to the same penalty. The proof not only showed that the child was under the age of twelve but showed that she was forcibly raped. It would have been necessary, therefore, in the state's instruction merely to say that if the jury believed that the child was under the age of twelve years they could convict appellant of rape whether the child consented or not. In other words, it was not necessary for the state to assume the burden of proving that appellant used force. In this instruction, the state assumed a greater burden than necessary by instructing the jury that they must believe that appellant forcibly ravished the child. Therefore, if the instruction was erroneous, such error is harmless as the state assumed therein a greater burden than was necessary.

Flowers v. State, 101 Miss. 108; Callicoat v. State, 131 Miss. 169.

Argued orally by J. F. Guynes, for appellant, and by Edwin R. Holmes, Jr., Assistant Attorney-General, for the state.

OPINION

Cook, J.

The appellant, Mellie Tillman, was indicted and convicted in the circuit court of Copiah county on a charge of attempt to rape one Maggie Hartley, a female child under the age of twelve years, and was sentenced to serve a term of five years in the state penitentiary, and from this conviction and sentence he prosecuted this appeal.

The indictment charged that the appellant did attempt to "willfully, unlawfully, feloniously and forcibly and against the will and consent of one Maggie Hartley, a female child of the age of eleven years, rape ravish and carnally know and abuse the said Maggie Hartley, a female child aforesaid, who is under the age of twelve years . . . and did then and there do certain overt acts toward the commission of said offense, etc." The testimony as to the age of the female was conflicting, and in the state's instruction submitting the cause to the jury, all reference to the age of the injured female was omitted, and the jury was authorized to convict if the alleged acts were done forcibly and against her will, and appellant assigns as error the granting of this instruction, and the refusal of an instruction requested by him to the effect that "in no event can you convict the...