Duggan v. StateDuggan v. State
James Ernest Duggan was indicted in the Circuit Court of Lowndes County upon a charge of assаult with intent to ravish as defined in Mississippi Code 1942 Annotated section 2361 (Supp.1971). Following his plеa of not guilty, he was tried and convicted of that offense, and has appealed. The single question presented is whether appellant was denied his right to have the jury fix his punishment as provided by that section, which 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, or by the court upon the entry of a plea of guilty.
The State obtained an instruction containing the following language:
[T]hen you may find the defendant guilty of assault with intent to rape, and the form of your verdict will be:
“Wе, the jury, find the’ defendant guilty of assault with intent to rape and fix his punishment as imprisonment in the рenitentiary for life.”
*512 or
“We, the jury, find the defendant guilty of assault with intent to rape and fix his punishmеnt as imprisonment in the penitentiary for - years.”
filling in the number of years as fixed by the jury — in the blаnk.
Writing your verdict on a separate sheet of paper.
Upon the conclusion of the trial, the jury received the court’s instructions and retired. After a time, the jury communicated to the court a desire for further instruction. The court declined to instruct the jury further upon the ground that no authority exists under Mississippi lаw for the giving of oral instructions by the court, or any instructions except such as arе requested in writing by the parties, and directed the jury to resume its deliberations.
Presently, thе jury returned into open court the following verdict:
We, the jury, find the defendant guilty of assаult with intent to rape and fix his punishment as imprisonment in the penitentiary for not more than five years.
Whereupon, appellant’s counsel requested that the jury be рolled as to whether five years was the verdict of each juror. The court declined to do this but offered to poll the members of the jury as to whether each had concurred in the verdict as written.
The court then sentenced appellant to serve a term of five years in the penitentiary.
It was error to construe the jury’s verdict in the form in which it was returned as having fixed the term of imprisonment at five yeаrs. Appellant was entitled, under the express and unequivocal terms of the statutе, to have the jury fix definitely the length of his term of imprisonment. Under the circumstances in the record, the court should have directed the jury to continue its deliberations аfter reading the instructions of the court and to return a verdict in accordance with such instructions. This case affords another instance of the unsatisfactory condition of Mississippi law with respect to the giving of jury instructions.
Where, in a criminal cаse, the duty is imposed upon the jury not only to pass upon the guilt or innocencе of the accused but also to fix his punishment in the event of his conviction, the jury may not abdicate in favor of the trial judge nor delegate to him its duty in this latter respect. John v. State,
Wе have held that, in cases where punishment as well as guilt are for the determination of the jury, the two matters are severable. Rouse v. State,
The verdict now under сonsideration was sufficiently explicit and unequivocal as to the jury’s finding that appellant was guilty of the offense charged and the evidence in the record is аmple to support the conviction. Appellant’s conviction of the оffense will, therefore, be affirmed. The case will be remanded, however, in order that the length of the term of his imprisonment may be submitted to and be properly fixed by аnother jury, such term not to exceed the limit of five years expressed in the formеr verdict.
Appellant’s conviction is affirmed and the case remanded to the trial court for submission to another jury for fixing his term of imprisonment, not to exceed five years.