Carley v. State

Apr 30, 1980

No. 51658

Versions:382 So. 2d 1090

1980 Miss. LEXIS 1980

Lead Opinion

COFER, Justice, for the Court.

Appellant Roy Carley was indicted on a state of facts by Mississippi Code Annotated, section 97-5-23 (1972), made a crime and was convicted on a trial of that indictment.

The sole assignment of error is that the prosecution and conviction were under a statute which is unconstitutional and violates the equal protection clause in that it applies only to male persons.

Unfortunately, the assignment of error is well taken, and in Ta.tro v. State, 372 So.2d 283 (Miss.1979), we held the statute unconstitutional. We have no alternative but to reverse the conviction and discharge the appellant thereon.

We, however, hold the appellant for further action of the grand jury on any other charge or charges to which the facts in the present record may point. Catchot v. State, 374 So.2d 807 (Miss.1979).

Appellant’s separate petition to reverse and discharge is by this decision rendered moot and is denied.

REVERSED AND DISCHARGED ON CONVICTION OF FONDLING; HELD TO GRAND JURY FOR ITS FURTHER CONSIDERATION AND ACTION.

PATTERSON, C. J., SMITH and ROBERTSON, P. JJ., and WALKER and BROOM, JJ., concur. BOWLING, SUGG and LEE, JJ., dissent.

Dissenting Opinion

BOWLING, Justice,

dissenting:

I respectfully dissent from the majority in this case for the reasons set out by Justice Sugg in his dissenting opinion in Tatro v. State, 372 So.2d 283 (Miss.1979.)

SUGG and LEE, JJ., join in this dissent.