Upshaw v. State

• Citation: 350 So.2d 1358
• Decision Date: 26 October 1977
• Docket Number: No. 49760,49760
• Parties: Terrance W. UPSHAW v. STATE of Mississippi.
• Court: United States State Supreme Court of Mississippi

Page 1358

350 So.2d 1358

Terrance W. UPSHAW v. STATE of Mississippi.

No. 49760.

Supreme Court of Mississippi.

Oct. 26, 1977.

Michael B. Martz, J. A. Jennings, Jackson, for appellant.

A. F. Summer, Atty. Gen. by Billy L. Gore, Sp. Asst. Atty. Gen., Jackson, for appellee.

Before PATTERSON, SUGG and WALKER, JJ.

SUGG, Justice, for the Court:

Defendant was convicted in the Circuit Court of the First Judicial District of Hinds County for raping a female child under the age of twelve years and was sentenced to death.

The defendant and his wife resided in Moss Point and in March, 1975 the defendant's wife requested that she and the defendant be permitted to live with Mr. and Mrs. M. L. Ruffin in Jackson for a short time until they could find employment. Mrs. Ruffin consented to her sister's request and the defendant arrived at the Ruffin's home on March 19, 1975. The defendant's wife remained in Moss Point but planned to move to Jackson after defendant secured employment. On March 20, 1975 Mrs. Ruffin retired to her bedroom along with her youngest son and her eight year old daughter, Sophia, about 8:30 p.m. Mr. Ruffin arrived home from a union meeting about midnight and placed the two children in their bedroom before retiring. Mrs. Ruffin awakened about 5:30 a.m. the next morning and proceeded to the room occupied by defendant and her oldest son, to awaken the oldest son for school. Upon observing that the defendant was not in his bed, she proceeded to the bedroom occupied by the two youngest children and discovered the defendant in bed with the children. Her questions to the defendant about the reason he was in the children's bed were ignored and she awakened the children and pulled them out of bed. She took her daughter to the bathroom and discovered that the child had been sexually abused, awakened her husband, informed him that the child had been raped and obtained a pistol from the closet. Mr. Ruffin told his wife to replace the pistol and call the police. He proceeded to the children's bedroom and dragged the defendant out of bed when the defendant stated: "I know you are going to kill me for this." About 6:00 a.m. the police responded to the Ruffin's call, arrested the defendant, advised him of his rights, and transported him to the police station. Upon arriving at the jail, defendant's clothing was taken as evidence and he was dressed in a city jail uniform.

We will first address defendant's argument that the death penalty for the rape of a female child under the age of twelve years constitutes cruel and unusual punishment in violation of the United States Constitution. After oral argument, we deferred consideration of the case until the United States Supreme Court decided Coker v. Georgia, --- U.S. ----, 97 S.Ct. 2861, 53 L.Ed.2d 982 (1977). After the decision in Coker additional briefs were requested on the applicability of Coker to this case. In Coker the Court took great pains to limit its decision to the applicability of the death penalty for the rape of an adult woman. The Court stated: "That question, with respect to rape of an adult woman, is now before us." At least six other times the majority opinion referred to the rape of an "adult woman." As we view Coker the Court carefully refrained from deciding whether the death penalty for the rape of a female child under the age of twelve years is grossly disproportionate to the crime.

In considering this question we must accept the United States Supreme Court's concept that the Eighth Amendment bars the death penalty for minor crimes. Certainly rape of a female child under the age of twelve years is not a minor crime and we are of the opinion that the Eighth Amendment does not prohibit death as a punishment for the crime. In reaching this conclusion we follow the principle that it is the function of the legislative department, and not the judicial department, to define crimes and prescribe the punishment therefor. The question of whether the death penalty is an appropriate punishment for the rape of a female child under twelve years of age should rest in the legislatures of the fifty states of the Union. Chief Justice Burger, in his dissent in Coker, stated:

Our task is not to give effect to our individual views on capital punishment; rather, we must determine what the Constitution permits a State to do under its reserved powers. (--- U.S. at ----, 97 S.Ct. at 2872, 53 L.Ed.2d at 997).

Chief Justice Burger further stated in his dissent:

The question of whether the death penalty is an appropriate punishment for rape is surely an open one. It is arguable that many prospective rapists would be deterred by the possibility that they could suffer death for their offense; it is also arguable that the death penalty would have only minimal deterrent effect. It may well be that rape victims would become more willing to report the crime and aid in the apprehension of the criminals if they knew that community disapproval of rapists was sufficiently strong to inflict the extreme penalty; or perhaps they would be reluctant to cooperate in the prosecution of rapists if they knew that a conviction might result in the imposition of the death penalty. Quite possibly, the occasional, well-publicized execution of egregious rapists may cause citizens to feel greater security in their daily lives; or, on the contrary, it may be that members of a civilized community will suffer the pangs of a heavy conscience because such punishment will be perceived as excessive. We cannot know which among this range of possibilities is correct, but today's holding forecloses the very exploration we have said federalism was intended to foster. It is difficult to believe that Georgia would long remain alone in punishing rape by death if the next decade demonstrated a drastic reduction in its incidence of rape, an increased cooperation by rape victims in the apprehension and prosecution of rapists, and a greater confidence in the rule of law on the part of the populace. (--- U. S. at ----, 97 S.Ct. at 2878-79, 53 L.Ed.2d at 1004-1005).

In addition to the observations of the Chief Justice, we suggest that it is arguable whether the life of a victim might be saved if the rapist knew he would not be put to death unless he killed his victim; however, we do not feel that we have the right to substitute our judgment for the judgment of the legislature on the question of punishment for a major crime such as the one involved in this case. We therefore hold that the death penalty is a permissible punishment for the rape of a female child under the age of twelve years.

In Jackson v. State, 337 So.2d 1242 (Miss.1976), following the death penalty cases decided by the United States Supreme Court, ¹ we reversed a sentence of death and remanded the case for a new trial. In Jackson we exercised the inherent power of the Court and prescribed rules of procedure for cases involving the death penalty. We adopted detailed rules providing for a bifurcated trial, permitting jury instructions as to lesser included offenses in proper cases, provided for automatic appellate court review and prescribed appropriate aggravating and mitigating circumstances to be considered by the jury, all in accord with the death penalty cases listed in footnote one. Following our decision in Jackson the state legislature enacted Miss.Gen.Laws Ch. 458 (1977), which made extensive changes in the procedure for the trial and review in death penalty cases. Because the defendant was not afforded a bifurcated trial in accord with Jackson and Miss.Gen.Laws Ch. 458 (1977), this case is reversed for retrial in accordance with the procedure outlined therein. Dobbert v. Florida, --- U.S. ----, 97 S.Ct. 2290, 53 L.Ed.2d 344 (1977).

Having reached this conclusion, other assignments of error must be considered because this case is remanded for retrial.

Defendant contends that the indictment is fatally defective because it does not charge an essential element of the crime in that it does not charge that the defendant "willfully" raped the female child. The indictment charges the following:

That Terrance W. Upshaw, a person over 18 years of age, in said District, County and State on the 21st day of March, A. D., 1975, did unlawfully, unlawfully, feloniously and forcibly have carnal knowledge of Sophia Catchine Ruffin, a female child under the age of twelve (12) years, in violation of Section 97-3-65(1) of the Mississippi Code of 1972, Annotated . . .

Section 97-3-65(1) ² Mississippi Code Annotated (Supp.1974) defines the crime of rape of a female child under the age of twelve years in the following language:

Every person eighteen (18) years of age or older who shall be convicted of rape by carnally and unlawfully knowing a female child under the age of twelve (12) years, upon conviction, shall be sentenced to death; . . .

The crime with which defendant was charged consists of unlawfully having carnal knowledge of a female child under the age of twelve years. The indictment contains the charge of the necessary elements of the crime as defined by statute. If the word "willfully" had been inserted in the indictment it would have been surplusage.

The defendant also argues that the state failed to prove that he willfully committed the offense. This argument is without merit because willfullness is not an essential element of the crime of rape of a female child under the age of twelve years.

Defendant also contends that his motion for directed verdict should have been sustained because of a variance in the name of the victim stated in the indictment and the actual name of the victim shown by the proof. The indictment charges that defendant had carnal knowledge of Sophia Catchine Ruffin, but Sophia's mother testified that the child's name was actually Sophia Catecine Ruffin.

The rule in this state concerning a variance in a victim's name in an indictment and the victim's actual name is found in Hughes v. State, 207 Miss. 594, 42 So.2d...