Cole v. State

Appellant was convicted of assaulting a child under 12 years of age, with intent to ravish her, and his punishment assessed at two years confinement in the penitentiary.

1. A reversal of the judgment is urged, because the verdict failed to state the finding of the jury as to the age of defendant, and because the evidence is insufficient to support the conviction.

With reference to the first contention, we think the verdict sufficient; that it is not necessary the jury should state the age of the defendant in their verdict. The Act of 1889, page 97, section 12, provides, that when the accused is 16 years of age or less, and the punishment is confinement in the penitentiary for five years or less, he shall be confined in the reformatory, providing "the jury convicting shall say in their verdict whether the convict shall be sent to the reformatory or the penitentiary." This latter provision is mandatory, and the jury must specify the place of confinement. But it has not been held, nor, indeed, is it true, that it is necessary to state in the verdict the finding of the age of the defendant. A general verdict is usually sufficient, and is so unless there is some provision or requirement of law making it necessary to make a special finding. While it is necessary that the provisions of the cited section should be given in charge, in regard to the age of the accused, as was done in this case, so as to direct the jury as to the discretion and duty devolving upon them in fixing the place of punishment, it does not follow that their conclusion as to such age should be stated in the verdict. If his punishment is fixed at confinement in the "house of correction and reformatory," it necessarily follows that they have found the age to be 16 or less years; and if they confine him in the penitentiary, it is wholly immaterial whether he be over or under 16 years of age. For if he be less, the jury have the discretion to place him in the penitentiary, and if he be over that age, it necessarily follows that he be sent to the same place. We think that it was unnecessary for the verdict to state the age of the defendant under said section .12, cited.

2. There is a serious conflict in the evidence. The testimony for the State fully sustains the conviction, while that introduced by the defense would have justified an acquittal. Under such a state of case, we would not be authorized to disturb the finding of the jury.

The judgment is affirmed.

Affirmed.

Judges all present and concurring.