Hicks v. State , 130 Miss. 411 ( 1922 )

Ethridge, J.,

delivered the opinion of tne court.

The appellants were indicted, tried, and convicted of assault with intent to ravish; the indictment, omitting the formal parts, reading as follows:

“Did .feloniously, forcibly and against her will throw down to the ground the said Erma Harris, and pull up her clothes and get between her legs and expose her private parts and endeavor to force an entrance into the private parts of said Erma Harris with the private parts of Guy Hinton and Walter Hicks, contrary to the form of stattite in such case made and provided.”

It is contended by the appellants that the indictment is void under section 1359, Code of 1906, Hemingway’s Code, section 1096, which reads as follows:

“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.”

It is further contended by the appellants that section 1359, Code of 1906, is the only section under which appellants could be indicted unless for a misdemeanor at common law, and that section 1049, Code of 1906, Hemingway’s Code, section 777, providing generally for the punishment of the attempt to commit offenses, has no application to the offense here sought to be charged, because excepted out because such offense is provided for in section 1359, and that no indictment under section 1049 can be sustained.

A careful consideration of the two sections, in the light of the rules of statutory construction, convinces us that this contention cannot be maintained because section 1049 remains in force in all particulars not excepted out of it by specific statutes, of which section 1359, Code of 1906, is a type. This section (1359) provides a greater punishment and an especial provision for fixing the term, as to females of previous chaste character, but does not change section 1049 as to females other than those of previous chaste character. The present proceeding was under section 1049, and under this section it was not necessary to allege that the female was previously of chaste character. Appellants rely upon Frost v. State, 94 Miss. 104, 47 So. 898, wherein the cause was reversed, and in the course of the opinion the court pointed out that it was error to instruct the jury that they might fix the penalty because section 1359 was the only section that gave the jury this power, and there was no allegation in the indictment that the female was of previous chaste character and in order to convict under section 1359 the indictment must allege the chastity of the female assaulted. The court in its opinion said:

“This indictment was drawn under section 1049 of the Code of 1906, and charged accurately enough an offense under this statute.”

The court recognized, we think, that if the state had proceeded under section 1049' the conviction would have been sustained on this point. The case was really reversed for another error, and the expressions on this phase of the case were to govern on the new trial; and if the state on a new trial desired to proceed under section 1359, it might procure an indictment under that section.

Repeals of statutes by implication are not favored, and statutes are only repealed and modified by subsequent statutes, in the absence of express provisions to the contrary to the extent of the'actual conflict. The indictment in this case is good under section 1049, and it was neither necessary nor proper to allege previous chastity of'character in the indictment.

It is further contended that the evidence .in the case is insufficient to convict because the testimony of the girl assaulted is contradicted by other witnesses. We have examined the testimony carefully, and we think the testimony of the female is consistent each part with the other, and that her testimony as to some of the facts are borne out by that of other witnesses. However, it is not necessary for the testimony of the female to be corroborated, where it is not inconsistent within itself or not in conflict with clearly established physical facts. The conflict in the present case involves only the credibility of the witnesses, and it is for the jury to say which line of testimony it will accept.

The verdict of the jury is supported by sufficient testimony, and there are no reversible errors in the testimony. The judgment is affirmed.

Affirmed.