Opinion
No. 40011.
April 2, 1956.
1. Criminal law — infants — fondling a female child.
Evidence supported conviction of fondling a female child under 13 years of age. Sec. 2052, Code 1942.
Headnote as approved by Roberds, P.J.
APPEAL from the Circuit Court of Harrison County; LESLIE B. GRANT, Judge.
Albert Sidney Johnston, Jr., Biloxi, for appellant.
I. The indictment returned against appellant by the Grand Jury of Harrison County, Mississippi, is fatally defective, does not charge a crime under Section 2052, Code of 1942, and although it was not attacked by his trial counsel in said Trial Court, appellant is entitled to attack the said indictment here.
II. Appellant was indicted for one offense, under Section 2358 or Section 2359, Code of 1942, and apparently tried for another, under Section 2052, Code of 1942, although the instructions for the State smack of the elements of both offenses, fondling and indecent assault upon a minor female under the age of thirteen years, under Section 2052, and rape, under Sections 2358 and/or 2359, Code of 1942.
III. Appellant was not accorded a fair and impartial trial in the Trial Court; hearsay evidence was used against him, and he was not secured in his constitutional rights.
IV. Appellant did not have the benefit of competent trial counsel in the Lower Court, and was thus deprived of due process of law.
V. The judgment of the Trial Court is contrary to the law and the evidence, and against the overwhelming weight of the evidence.
VI. The instructions granted the State against him are erroneous, do not state the law, and were given without reference to the facts.
VII. The Trial Court committed error in overruling appellant's motion for a new trial.
Collation of authorities: Allen v. State, 175 Miss. 745, 166 So. 922; Love v. State, 211 Miss. 606, 52 So.2d 470-71; Almaguer v. State (Tex.), 237 S.W.2d 631, 633; Secs. 2052, 2358-2359, Code 1942.
John H. Price, Jr., Asst. Atty. Gen., Jackson, for appellee.
I. The testimony of the prosecuting witness was corroborated although this was not absolutely necessary. Upton v. State, 192 Miss. 334, 6 So.2d 129; Rogers v. State, 204 Miss. 891, 36 So.2d 155; Gerrard v. State (Miss.), 34 So.2d 195; Richardson v. State, 196 Miss. 560, 17 So.2d 799; Boyd v. State, 189 Miss. 609, 198 So. 561; Barnes v. State, 164 Miss. 126, 143 So. 475; Reeves v. State, 159 Miss. 498, 132 So. 331; Frost v. State, 94 Miss. 104, 47 So. 898 and 100 Miss. 796, 57 So. 221; Clark v. State, 124 Miss. 841, 87 So. 286; 75 C.J.S. 564.
II. Appellant was accorded a fair and impartial trial and was not deprived of his constitutional rights. Summerville v. State, 207 Miss. 54, 41 So.2d 377; Mississippi Utilities Co. v. Smith, 166 Miss. 105, 145 So. 896, 898.
III. The indictment returned against appellant is not fatally defective. Washington v. State, 22 Miss. 120, 14 Sm. M. 120, 1 Mor. St. Cas. 517; Goins v. State, 155 Miss. 662, 124 So. 785.
IV. Reversible error was not committed by introduction of hearsay evidence.
V. Appellant not deprived of due process of law for having incompetent trial counsel.
VI. No reversible error was made in the trial in the Lower Court.
Appellant was convicted of the crime of fondling a female child under thirteen years of age, and sentenced to the state penitentiary for one year. The crime is defined by Section 2052, Miss. Code of 1942. The details of the crime, as disclosed by the proof, are so revolting that we think it best not to detail and make a permanent record of them. (Hn 1) It is sufficient to say that we have carefully and thoroughly considered all of the questions urged on this appeal and we find no reversible error in the record.
Affirmed.
Hall, Lee, Holmes and Ethridge, JJ., concur.