Ross v. State

601 So. 2d 872 (Miss. 1992)



The crime of attempt to commit an offense occurs when a person 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. Miss. Code Ann. § 97-1-7(1972). Attempt consists of (1) an intent to commit a particular crime; (2) a direct ineffectual act done toward its commission, and (3) failure to consummate its commission. 


The complainant lived with her young daughter in a trailer. Defendant stopped at her trailer, pointed a handgun at the complainant, ordered her into the house, told her to undress, and threatened to kill her. She pleaded that her daughter would be home from school soon. Defendant walked the complainant out to the back of her trailer before he left. The complainant filed a case for attempted rape with the court and the defendant was convicted. On appeal, defendant claimed that the jury should have been instructed only on a simple assault charge. He asserted that it was not the complainant's resistance that prevented her rape nor any independent intervening cause or third person, but the voluntary and independent decision by defendant to abandon his attack.


Was the evidence sufficient to convict the defendant of attempted rape?




The court reversed defendant's conviction because defendant raised a legitimate issue of error in the sufficiency of the evidence supporting his conviction for attempted rape because he voluntarily abandoned the attempt. An attempt consisted of an intent to commit a particular crime, a direct ineffectual act done toward its commission, and failure to consummate its commission. The court found that defendant left because he responded sympathetically to the complainant's statement that she had a little girl.

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