holding that "reviewing court, in a proper case, may modify a judgment of conviction below and affirm it as a conviction of a lesser degree of the offense charged, or of a lesser crime included therein, where the errors do not affect the conviction of the lesser offense ”
How later courts described this case
- holding that "reviewing court, in a proper case, may modify a judgment of conviction below and affirm it as a conviction of a lesser degree of the offense charged, or of a lesser crime included therein, where the errors do not affect the conviction of the lesser offense ”
- holding that conviction for rape should be reduced to lesser included offense of assault and battery with intent because there was a failure of proof on the penetration element of rape.
- holding that conviction and acquittal of offense includes conviction and acquittal of offense includes conviction and acquittall all lesser included offenses
- holding that “reviewing court, in a (continued...
Written by the judges who cited it.
The opinion
Concurring Opinion
Myers, J.
— I concur in the result attained in the majority opinion. The facts in this, case warrant the proof, beyond a reasonable doubt, of the lesser included offense, that is, assault and battery with intent to gratify sexual desires. Appellant’s attorney admitted his guilt thereto in oral argument. The greater offense of rape was not proven.
The question is whether the judgment of the trial court should be modified and the court , directed to sentence appellant accordingly, or, whether this .court *625 should reverse and remand the case for a.new trial. The- majority opinion indicates that the procedure of modification it follows could be broadly applied in all fields of criminal law. This I cannot agree with, regardless of the position other states have taken. If We are going to deprive a defendant of a new trial after - determining that he was wrongfully convicted, it should bé done very sparingly and with thorough regard for the nature of his crime and the circumstances, of his trial. Otherwise, this court conceivably could be placed in the position of usurping the right to a trial by jury and convicting a defendant without giving him his day in court.
In this particular case, a careful study of the record clearly reveals the propriety of modification of the judgment as ordered.