BEFORE BROOM, HAWKINS AND DAN LEE
JUSTICE DAN M. LEE FOR THE COURT:
Lynn Shelton was indicted by the Grand Jury of Lowndes County, Mississippi, at the November, 1981 term. That indictment charged him with abusing Kenneth Shelton, a nine month old child, in violation of 97-5-39 Miss. Code Ann.(1972) as amended. From a verdict of guilty and a sentence of eighteen (18) years in the custody of the Mississippi Department of Corrections, Shelton now brings this appeal.
At trial the state introduced testimony of several doctors who had treated Kenneth Shelton for various and sundry injuries. Among those injuries were two separate incidents in which a bone in the left leg of the child was broken, and an incident where a pacifier was lodged in the child's throat. There was also testimony by Beverly Hines, who had baby-sat for the child. She testified that during the time in which she was baby-sitting there was always something unusual about the child. She stated that she noticed bruises, scratch marks, burns on the child's chin, cuts on his lip, and on one occasion a closed handprint on the child's face.
Testimony of Doctors Voller, Simmons, and Rhea was that the break of the child's leg was of a spiral or twisting nature and that such a break was unusual in non-ambulatory patients such as the child here. Drs. Voller and Simmons testified that the mother gave no reason for
the fracture. Moreover, Dr. Rhea testified that the reason given by the mother for the second fracture was inconsistent with the type injury involved. Shelton's mother-in-law testified as to his treatment of the child. She stated that he would slap the baby's hand for putting it in its mouth, feed the baby too fast, push the baby's nose until it cried, and that after the child had sustained one of the breaks, while it was in traction in the hospital, Shelton would take the traction ropes and raise and lower the child with them. There is also testimony from the child's mother that Shelton was jealous of the child. Shelton's wife testified that she told the grand jury she would not feel safe it she had to leave the baby with him.
Shelton's first assignment of error is that the indictment is insufficient in that it fails to specify the date on which the offense was committed since time is of the essence in this case. It is contended that inasmuch as the state's evidence presented the jury with two separate and distinct instances in which the femur bone of the child's left leg was fractured, the first occurring March 22, 1981, and the second September 20, 1981, the indictment was defective for two reasons. First, it is asserted that the lack of specificity caused the indictment to be improperly duplicitous. The pertinent part of the indictment reads as follows:
Lynn Shelton late of the county aforesaid, on or about the 22nd day of March, 1981 in the county aforesaid, to September 20, 1981, and in between said dates, did willfully, unlawfully, feloniously and intentionally, and not in self defense and not in order to prevent bodily harm to a third party, abused Kenneth Shelton, a nine (9) month old child, in such a manner so that the femur bone of said child was fractured contrary to 97-5-39 Miss. Code Ann.(1972) as amended.
It has long been the rule in Mississippi that an objection to an indictment for duplicity cannot be made after the verdict. Wilkinson v. State, 77 Miss. 705, 27 So. 639 (1900). Even the Mississippi Code requires that an objection to an indictment must be taken by demurrer prior to the jury being empaneled. Section 99-7-21 Miss. Code Ann. (1972).
In the instant case Shelton filed a motion before
trial to make the indictment more definite and certain; however, the record does not indicate that this motion was ever ruled on. The rule in this state is that where the record fails to indicate that a demurrer to an indictment was ever ruled upon by the trial court, then said motion will be considered waived or withdrawn. Sherrod v. State, 90 Miss. 856, 44 So. 813 (1907); Boatwright v. State, 143 Miss. 676, 109 So. 710 (1926).
Shelton's second assignment of error is that the trial court erred when it gave oral instructions to the jury, commented on the testimony and weight of the evidence, commented on the defendant's right not to testify, then commented on the testimony of Mrs. Beverly Hines. Review of the record reveals that none of the statements complained of were objected to by defense counsel. As to the instructions, it has long been the rule in this state that error in giving of instructions will not be considered on appeal where the record of the proceedings below reveals no contemporaneous objection. Goss v. State, 413 So.2d 1033 (Miss. 1982); Warren v. State, 369 So.2d 483 (Miss. 1979); Pittman v. State, 297 So.2d 888 (Miss. 1974). Also, Rule 42 of the Mississippi Supreme Court provides that "No assignment of error based on the giving of an instruction to the jury will be considered on appeal unless specific objection was made to the instruction in the trial court. . ."
As to the remarks of the trial judge during the testimony of Beverly Hines again, the record indicates that no objection was made by defense counsel. In Baker v. State, 327 So.2d 288 (Miss. 1976), we held:
An objection to the testimony of a witness, conduct of opposing counsel or a remark of the court should be made contemporaneously with the occurrence or matter complained of so that the court may, when possible, ...