BEFORE ROY NOBLE LEE, DAN LEE AND ROBERTSON
DAN LEE, JUSTICE, FOR THE COURT:
This is an appeal from the Circuit Court of Coahoma County. The defendant, Robert Thomas, was charged with burglary of an inhabited dwelling, attempted rape, and attempted sexual battery, and found guilty of burglary and attempted rape. He was sentenced, on the burglary conviction, to fifteen (15) years imprisonment; he was sentenced, on the rape conviction, to ten (10) years imprisonment. The
court imposed consecutive sentences, to be served under the supervision and control of the Mississippi Department of Corrections.
Thomas appealed, assigning sixteen errors to the court below. We find that Thomas was impermissibly prejudiced by being tried and sentenced on both burglary and attempted rape, and therefore reverse and vacate his sentence on the conviction of attempted rape, but affirm the conviction and fifteen (15) years sentence for burglary. Due to the fact that we must reverse and vacate Thomas' ten (10) year sentence for attempted rape, we find it necessary to discuss only four of his assignments of error since the other twelve (12) assignments either are merged or have no merit. They are:
The Lower Court erred in over-ruling defendant's demurrer to the indictment on grounds of multiplicity."
"The Lower Court erred in refusing cross-examination as to the clothes worn by the Prosecutrix."
"The Lower Court erred in refusing to permit re-call of Prosecutrix for cross-examination as to the conversation with Pate."
"The Lower Court erred in refusing to let defendant re-open to present testimony of Bobby Thomas."
On October 4, 1982, Alice Wilson, a resident of the East Park Subdivision in Lyon, Mississippi, was assaulted in her home, during the mid-morning hours. Her assailant let himself in through an unlocked door while she was busy doing household chores. The man carried her back to her bedroom, ripped her blouse off, and removed the rest of her clothing. Mrs. Wilson and her assailant scuffled for several minutes, and he bit her repeatedly. During that time, the attacker managed to remove his own clothes, and attempted to have sexual intercourse with Mrs. Wilson. However, Mrs. Wilson told him that she had recently had an operation which made it impossible for her to have sex. Apparently, the attacker accepted this explanation, but then demanded that Mrs. Wilson perform fellatio on him. Mrs. Wilson instead offered to give him some money, and the intruder then ceased his attack on Mrs. Wilson and left her home.
When police arrived at Mrs. Wilson's home, they took her blouse, as well as several other items, into evidence. Prints taken from these objects matched those of the
defendant, Robert Thomas, who was subsequently arrested. At that time he gave two statements to police, where he attempted to establish his whereabouts on the morning of October 4th. The statements contained several discrepancies as to time.
Thomas was indicted for burglary, attempted rape, and attempted sexual battery. His attorney demurred to the indictment on the grounds that it contained more than one charge.
The defendant's first assignment of error is that the lower court erred in overruling his demurrer to the indictment on the grounds that it alleged multiple crimes. The history of our disapproval of the multiple count indictment has been recited in several recent cases, and need not be recounted here. Suffice it to say that the "pyramiding" of multiple punishments growing out of the same set of operative facts constitutes reversible error in this state, Friday v. State, 462 So. 2d 336 (Miss. 1985); Johnson v. State, 452 So. 2d 850 (Miss. 1984); Bennett v. State, 451 So. 2d 727 (Miss. 1984); Stinson v. State, 443 So. ...