Taurasi v. State

Arrington, J. The appellant was convicted on an indictment charging him with an attempt to commit sodomy, and was sentenced to the penitentiary for a term of five years, from which judgment he appeals. The indictment is predicated upon Section 2017, Mississippi Code of 1942, which is, in part, as follows: “Every person who shall design and endeavor to commit an offense, and shall do any overt act toward the commission thereof, but shall fail therein, or shall be prevented from committing the same, on conviction thereof, shall [332] The appellant first.argues that the demurrer to the indictment should have been sustained upon the ground that it charges no offense known to the law. The indictment properly charged the offense of an attempt to commit the crime denounced under Section 2413, Code of 1942, as was decided in the recent case of State v. Davis, 223 Miss. 862, 79 So. 2d 452. The appellant next argues that the verdict is contrary to the law and the evidence. Without detailing the sordid events, we are of the opinion that the evidence on the part of the State is ample to sustain the conviction. Neither the appellant nor any other witness testified in his behalf, therefore, the State’s evidence stands undisputed, and we find no merit in this contention. It is also argued by the appellant that the court erred in refusing certain instructions. The first instruction was based upon entrapment as a defense. The court correctly refused this instruction as was held in the case of French v. State, 149 Miss. 684, 115 So. 705. Mississippi Jury Instructions, Alexander, Sec. 2201. The second instruction refused the appellant told the jury, “If you believe that any witness has knowingly, wilfully and corruptly testified falsely about any material matter in the case, you have the right to disregard the testimony of such witness.” This instruction was condemned in the case of Metropolitan Life Insurance Company v. Wright, 190 Miss. 53, 199 So. 289. See also Swanner v. State, 191 Miss. 47, 2 So. 2d 142; Dolan v. State, 195 Miss. 154, 13 So. 2d 925; Mississippi Jury Instructions, Alexander, Sec. 148. We find the other assignments to be without merit, and the case is therefore affirmed. Affirmed. McGéhee, C. Jand Kyle, Ethridge and Gillespie, JJ., concur.