BEFORE PATTERSON, BOWLING AND PRATHER
BOWLING, JUSTICE, FOR THE COURT:
Appellant Ronnie Edward Smith was indicted, tried and convicted in the Circuit Court of the First Judicial District of Hinds County for the crime of burglary. He was sentenced to serve a term of twenty years in the custody of the Mississippi Department of Corrections.
There are a number of assignments of error, all of which we have carefully studied and considered. We find,
however, that only one serious issue is raised and it needs a detailed discussion.
Prior to the indictment in the case sub judice, appellant was indicted, tried and convicted of the crime of rape. [Smith v. State, 405 So. 2d 95 (Miss. 1981)l. He was sentenced to serve a term of thirty years as a result of that conviction. The prior conviction for rape and the conviction for burglary, under the present appeal, arose out of the same general set of facts that occurred on June 12, 1980, at approximately 1 o'clock a.m. The state's testimony was that appellant entered the bathroom window of a home in Jackson, Mississippi, armed with a pistol. There is some contradiction as to what occurred afterwards. The proof in both cases is that the rape prosecutrix, her father and another grown male were in the home; that the appellant bound the two men; and thereafter a rape was committed on the young female occupant of the home. On the prior conviction of rape, the indictment was under the provisions of Mississippi Code Annotated, Section 97-3-65(2)(Supp. 1982), which reads as follows:
(2) Every person who shall forcibly ravish any female of the age of twelve (12) years or upward, or who shall have been convicted of having carnal knowledge of any female above the age of twelve (12) years without her consent, by administering to her any substance or liquid which shall produce such stupor or such imbecility of mind or weakness of body as to prevent effectual resistance, upon conviction shall be imprisoned for life in the state penitentiary if the jury by its verdict so describes; and in cases where the jury fails to fix the penalty at life imprisonment, the court shall fix the penalty at imprisonment in the state penitentiary for any term as the court, in its discretion, may determine.
Under the latter conviction for burglary, the indictment was pursuant to MCA 97-17-23 (1972), which reads as follows:
Every person who shall be convicted of breaking and entering, in the night, the dwelling house of another, armed with a deadly weapon, in which there shall be at the time some human being, with intent to commit some crime therein, shall be punished by imprisonment in the penitentiary not more
The indictment in the present case charged that appellant
"while then and there armed with a deadly weapon in said District, County and State on the 12 day of June, A. D., 1980, did then and there, unlawfully, wilfully, feloniously and burglariously, break and enter, in the night, the occupied dwelling house of Dave Williams, Melissa Darnell Williams being then and there in said dwelling house, with then and there the felonious intent of him, the said Ronnie Edward Smith, to then and there unlawfully, wilfully, and feloniously commit the crime of rape on Melissa Darnell Williams."
Appellant contends that his trial and conviction under the burglary charge in the case sub judice exposed him to double jeopardy under the United States and Mississippi Constitutions.
We have thoroughly researched this question presented under the facts, evidence and indictments resulting in appellant's convictions and are forced to the conclusion that the state was legally and constitutionally justified in indicting, trying and convicting appellant under both the rape charge and the burglary charge.
The bellwether case applicable to the question before us is Blockburger v. United States, 284 U.S. 299, 76 L.Ed. 306, 52 S. Ct. 180 (1931). In that case the charges grew out of an essentially same set of facts that resulted in multiple indictments and convictions regarding the sale of narcotics. The court, through Mr. Justice Sutherland, set out the primary principle involved in problems such as that now before us. There it was stated:
Each of the offenses created requires proof of a different element. The applicable rule is that where the same act or transaction constitutes a violation of two distinct statute provisions, the test to be applied to determine there are two offenses or only one, is whether each provision requires proof of an additional fact which the other does not. Gavieres v. United States, 220 U.S. 338, 342, 55 L.Ed. 489, 490, 31 S. Ct. 421, and authorities cited. In that case this Court quoted from and adopted the language of the Supreme Court of Massachusetts in Morey v. Com., 108 Mass. 433: "A
single act may be an offense against two statutes; and if each statute requires proof of an additional fact which the other does not, an acquittal or conviction under either statute does not exempt the defendant from prosecution and punishment under the other." (284 U.S. at 304, 75 L.Ed. 309, 52 S. Ct. 182.)
In the recent case of United States v. Cowart, 595 F.2d 1023 (5th Cir. 1979), the Fifth Circuit Court reiterated the rule in Blockburger and stated:
To determine whether defendant was subject to multiple punishment for the same offense, we look to the leading case of Blockburger v. United States, 284 U.S. 299, 52 S. Ct. 180, 76 L.Ed. 306 (1932), where the Supreme ...