146 So. 2d 350 | Miss. | 1962
Aaron Winters, appellant, was convicted in the Circuit Court of Quitman County of attempted rape upon an eleven year old girl, and was sentenced to ten years in the state penitentiary. The evidence, in conflict to some extent, is sufficient to support the conviction, but it must be reversed because of a material and probably prejudicial error of law in the granting of an instruction for the State.
The State obtained two instructions pertaining to the elements of the offense. One of them was adequate. The second stated: “The Court instructs the Jury for the State that Attempted Rape is a constituent offense of Rape and if you believe in this case beyond a reasonable doubt that the Defendant, Aaron Winters, did not wilfully, unlawfully and feloniously ravish and carnally know the said Diane Winters, a female child under the age of 12 years, then it is your sworn duty to find the Defendant, Aaron Winters, guilty of Attempted Rape and the form of your verdict may be: ‘We, the Jury, find the Defendant, Aaron Winters Guilty of Attempted Rape’.”
In short, this instruction told the jury that, if defendant was not guilty of rape (and the evidence shows he was not), then it is the jury’s duty to find Winters guilty of attempted rape. This is a peremptory instruction for the State, which is not permissible in a criminal case. If it is assumed that the State’s attorneys inadvertently omitted some qualifications or clauses from it, perhaps in having it typed, nevertheless it went to the jury in this form, and was erroneous and misleading.
Supreme Court Rule 11 provides: “No judgment shall be reversed on ground of misdirection to the
Reversed and remanded.