State v. Henderson

Stukes, Justice.

Appellant was tried upon an indictment which was reduced on motion of the Solicitor to two counts: first, rape; and second, assault and battery of a high and aggravated nature. The jury convicted him upon the second count and he has appealed.

The first question is stated in the brief as follows:

“1. Where a jury acquits a defendant of rape, but finds him guilty of assault and battery of a high and aggravated nature, can this verdict be sustained as a matter of law when both the prosecutrix and the defendant admitted the penetration, the former contending it was accomplished with force and without consent, but the latter averring it was done with consent and without force?”

The point was not timely made upon trial and is, therefore, not available on appeal. It should have been made before the issues were submitted to the jury; instead, a contrary position was taken at that time. Counsel for the defendant, who formerly had a long and successful experience as Solicitor, moved at the close of the evidence for a directed verdict of acquittal upon the first count of the indictment. Upon refsual, he moved the court to reduce the charge to assault and battery, which was also refused. Appellant is bound by his expressed view of the evidence; he cannot blow hot and cold. For the reason stated the first ground of appeal is overruled without decision upon the merits of it.

The second ground of appeal points to prejudicial error which requires reversal for new trial. After the jury retired and began their consideration they returned from their room and asked for additional instructions with reference to assault and battery of a high and aggravated nature. The court responded with rather lengthy further instructions, after which the following transpired:

“The Court: Anything further now, gentlemen?

“Mr. Lambright: Not for the State.

“Mr. Watt: Your Honor, in view of that, those instructions, we think the Court should instruct the jury also that if the prosecutrix consented, then it could not be an assault and battery of a high and aggravated nature.

“The Court: Well, I charged indecent liberties or familiarities with a female, without her consent. * * * I think my charge covers it. Let your record show Mr. Watt requested charges on it and I am of opinion it is sufficiently covered in the charge which I have given.”

Although perhaps sufficiently covered in the general charge, if it stood alone, appellant was entitled to clarification of the additional instructions in accord with counsel’s pertinent request. Without it the additional instructions were incomplete and prejudicial to appellant.

The case is reversed for new trial.

Oxner and Legge, JJ., concur. Taylor, J., and M. M. Mann, Acting Associate Justice, dissent.