* Corpus Juris-Cyc References: Assault and Battery, 5CJ, p. 788, n. 2; p. 790, n. 14; Criminal Law, 17CJ, p. 254, n. 51; p. 257, n. 68; p. 261, n. 69; p. 267, n. 99; p. 360, n. 65; Indictment and Information, 31CJ, p. 745, n. 96, 98. C.A. Crawford appeals from a conviction on a charge of indecent assault upon the person of Miss Jennie *Page 544 Moore, and a sentence to pay a fine of fifty dollars and serve a term of thirty days in the county jail.
The testimony offered for the state shows that the alleged indecent assault occurred at a circus where the appellant and the prosecutrix were seated next to each other, under the tent, while the performance was going on; that they had been neighbors for a number of years, and accidentally met and sat together that day at the circus; that there were some children with the prosecutrix; and that people sat above and below her and appellant on the seats as they are generally arranged in a circus tent.
What happened may be best told by quoting the testimony of Miss Moore, the prosecutrix. She testified, among other things:
"And he just placed his arm upon my back, and I just knocked it back and moved; next minute he put his hand under my leg this way [indicating] and touched me on my leg.
"Q. Where did he touch you on the leg? A. Just above the knee; and I got between my two little sisters; and he said, `I beg your pardon;' and I said, `There is no pardon to it;' and I walked down to where papa was; and he said, he asked me was I ready to go home; and I told Leo Robinson about that right after the show."
The substance of her testimony is that she was assaulted by the appellant in the manner stated; that the assault (and battery) was against her will, and was also indecent. The case was tried on the theory of an "indecent assault" upon the person of the prosecutrix. The instruction given by the court for the state was upon the theory of an "indecent assault," but the instruction followed the language of the indictment. The appellant denied the assault, and no one else saw it.
The indictment, leaving out the formal parts, is as follows:
". . . Present that Claude Crawford late of the county aforesaid, on the 11th day of February, 1924, *Page 545 with force and arms in the county aforesaid, and within the jurisdiction of this court, he being then and there an adult male person, in and upon the person of one Jennie Moore, a female child of the age of sixteen years and of chaste character, did then and there willfully and unlawfully make an indecent assault by then and there unlawfully and willfully taking improper liberties with the person of the said female child and by then and there willfully and unlawfully putting his hands upon the private person of the said female child in a lewd and lascivious manner, all of which things were then and there without the consent and against the will of the said female child."
The appellant contends that the judgment of the lower court should be reversed, because: First, the demurrer to the indictment should have been sustained for the reason that there is no such crime, either at the common law or under the statutes of this state, as "indecent assault," and that the instruction to the jury based upon the indictment was error, and that the motion to exclude the testimony supporting the indictment should have been sustained, because there is no such criminal offense under the laws of our state; and, second, that the proof offered by the state was insufficient to sustain the charge of "indecent assault," and that it was not sufficient to sustain any other kindred offense.
On the opposite side, the state argues that, while there is no statute making an "indecent assault" a crime in this state, and also that no such crime is prescribed by one common law, yet the conviction should be sustained upon the ground that the indictment sufficiently charges an assault and battery, and that the "indecent" element charged was a surplusage, and resulted in putting a greater burden upon the state in proving the charge of assault and battery than it would otherwise have had in proving simple assault and battery, and that, therefore, the judgment should be affirmed as a conviction of assault and battery, since the punishment imposed was not *Page 546 in excess of that provided for the commission of simple assault and battery. The following cases are cited in support of the contention of the state: Martin v. City of Laurel, 106 Miss. 357, 63 So. 670; Blakenship v. State, 130 Miss. 725, 95 So. 81; Hussey v. State, 144 Miss. 380, 109 So. 871.
We think the view of the attorney-general is sound and is well supported by the authorities cited. Especially is this true inMartin v. City of Laurel, supra, where, as we understand the opinion, the court held that the conviction of assault was supported by the evidence, notwithstanding the fact that the intent of the indictment was to charge a different offense; and therefore the lower court was correct in overruling the demurrer to the indictment and refusing to grant the peremptory instruction asked by the appellant.
The lower court also was not in error in granting the instruction to the state which followed the terms of the indictment, because the instruction, as well as the indictment, went upon the theory of assault and battery committed in an "indecent" manner. The instruction containing the "indecent" feature did not injure the appellant's case, but was favorable to him, in that it required that the state prove the indecency, as well as the assault and battery, before conviction could be had.
On the question whether the evidence is sufficient to sustain the indictment, we have considered the testimony of the prosecutrix very carefully, and, while we think it is not the strongest case of the kind on the proof still there is enough testimony to justify the jury in finding the appellant guilty. The jurors were the sole judges of the credibililty of the witnesses, and their finding of fact should not be disturbed by this court, although we may say in passing that the record before us reflects rather an unusual and weak case in some respects. However, the question of guilt or innocence of persons charged *Page 547 with crime must be left to the decision of a jury in the county where the offense is charged.
The judgment of the lower court is affirmed.
Affirmed.