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
Dissenting Opinion
Jackson, C. J.
— I am unable to concur in the conclusion reached in . either the majority or concurring opinion herein and dissent to both.
Appellant was charged with the crime of rape on a nine year old girl. Trial was had to the court, resulting in a- finding and judgment of guilty, and the imposition óf á life sentence on appellant.
, .1 concur in those portions of the majority and concurring opinions holding that there is not sufficient evidence to prove appellant guilty of the crime of rápe.
.... The majority opinion states “[ajlthough the question here is one of first, impression in this state. . . .” With this statement I most vigorously disagree. The correct’ statement would be that this case is only one of a number of like cases heretofore considered by this *626 court in the past, but that this is the first time this court has had the temerity to usurp the prerogative of a triál court or jury, and to try and sentence an accused in absentia, without trial, without counsel, without an opportunity to face his accuser, substituting its judgment, feeling or opinion for that of the triab court or jury, and depriving the accused of constitutional rights guaranteed him by both the State and Federal Constitutions. • -
The judgment should be reversed, and the cause remanded to the trial court with instructions to grant appellant’s motion for a new trial.
Note. — Reported in 189 N. E. 2d 575 .