Watkins v. State

• Decision Date: 14 January 1923
• Docket Number: 23622
• Citation: 98 So. 537,134 Miss. 211
• Court: Mississippi Supreme Court
• Parties: WATKINS v. STATE

98 So. 537

134 Miss. 211

WATKINS v. STATE

No. 23622

Supreme Court of Mississippi

January 14, 1923

Division B

APPEAL from circuit court of Neshoba county, HON. G. E. WILSON Judge.

Ang Watkins was convicted of an assault with an intent to commit rape, and he appeals. Affirmed.

Judgment affirmed.

Earl Richardson and J. B. Hillman, for appellant.

The demurrer to the indictment in this case should have been sustained as it fails to charge an assault with intent to rape. The appellant could not be indicted under the general attempt statute, section 777 of Hemingway's Code, for the reason that there is a separate statute for assault with intent to rape, being section 1096 of Hemingway's Code which clearly defines the crime of assault with intent to rape and fixes the punishment for same. This indictment cannot be treated as good under the last section for the reason that it fails to allege that the prosecutrix was of previous chaste character, which this court has many times held was necessary.

We submit further in this case, that if the testimony of the prosecutrix is to be believed then the appellant is not guilty of either an attempt to rape, nor of an assault with intent to rape, but is guilty of the crime of rape. Therefore a conviction for an attempt to commit rape cannot stand. See Davis v. State, 89 Miss. 21, 42 So. 542; Wilson v. State, 85 Miss. 687; Kemp v. State, 89 Miss. 445.

This conviction was had absolutely and alone upon the testimony of the prosecutrix, she not being corroborated by any other witness or circumstances. "Courts and juries cannot well be too cautious in scrutinizing the testimony of the complaining witness." Monroe v. State, 71 Miss. 201. We also invite the court's special attention to the following cases: Rawles v. State, 105 Miss. 407; Simmons v. State, 105 Miss. 48.

H. T. Odom, Assistant Attorney-General, for the state.

The case of Hicks et al. v. State, 94 So. 218, 130 Miss. 411, decides the statutory question presented by counsel adversely to his contention here. Counsel contend that the state's evidence tended to show that the crime of rape was complete rather than that an assault had been committed with the intent to rape. This assignment of error is not without some merit. But a consideration of all the testimony in the case does not show that the crime of rape was committed, and the finding of the jury that appellant was guilty of an assault with intent to rape should not be disturbed.

The testimony of Mrs. Poore, mother of the prosecutrix, was admissible. The witness simply testified that she accused the appellant of the crime, that he practically admitted it and fled. Surely the fact that appellant fled and in substance admitted the crime, is material testimony, and was properly submitted to the jury.

The Garner case reported in 120 Miss. 744, 83 So. 83, is not in point because the appellant did not deny having committed the crime when charged with same. I cannot believe that the court in Monroe v. State, 71 Miss. 196, intended to say that the jury should be instructed that the testimony of the prosecutrix should be scrutinized with care and caution. If the instruction had been granted as asked, the jury could have drawn no other inference than that the trial court was telling them to look upon the testimony of the prosecutrix with suspicion, which would have been most unfair and unjust.

OPINION

COOK, J.

The appellant was indicted and convicted in the circuit court of Neshoba county on a charge of assault with intent to rape; the indictment, omitting the formal parts, reading as follows:

"Did unlawfully and designedly make an assault on the body of one Selma Poore, a female child under the age of twelve years, and did then and there lay hold of the body of the said Selma Poore, and did then and there place his private parts on and against the private parts of the said Selma Poore, with the unlawful and felonious intent, design and endeavor her, the said Selma Poore, unlawfully, knowingly and feloniously to ravish and carnally know."

A demurrer was interposed to this indictment, which was overruled, and it is here contended, first, that this indictment cannot be maintained under section 1049, Code 1906 (section 777, Hemingway's Code), providing generally for the punishment of offenses because there is a separate statute providing for the crime of assault with intent to ravish, being section 1359 of the Code of 1906 (section 1096, Hemingway's Code); and, second, that the indictment is void under the latter section, for the reason that it fails to allege that the prosecutrix was of previous chaste character.

There is no merit in this contention of the appellant. This precise question was considered and decided adversely to this contention in the case of Hicks et al. v. State, 130 Miss. 411, 94 So. 218. This indictment was drawn under section 1049, Code 1906 (section 777, Hemingway's Code), and under this section it was not necessary to allege that the female was previously of chaste character.

Appellant next contends that the testimony for the state tends to show that the crime of rape was complete, and consequently this conviction of an attempt to rape cannot be maintained, since under the provisions of section 1050, Code...