BEFORE ROY NOBLE LEE, C.J., PRATHER AND ZUCCARO, JJ.
PRATHER, JUSTICE, FOR THE COURT:
George Lee Alexander, the appellant, was convicted of attempted rape and sentenced as an habitual criminal to a term of ten years in the custody of the Mississippi Department of Corrections at Parchman, Mississippi, without reduction or suspension, or eligibility for parole or pardon. Aggrieved by the action below, Mr. Alexander has perfected his appeal to this Court, assigning that the lower court erred:
(1) In failing to sustain appellant's demurrer to the indictment which did not state an overt act toward commission of rape;
(2) In failing to grant a directed verdict, the verdict of the jury being against the overwhelming weight of the evidence; and
(3) In allowing improper closing argument by the district attorney.
On June 26, 1985, Cynthia McChesney was a patient in the Oxford-Lafayette County Hospital. At approximately 3:00 a.m., she awoke when a towel was placed over her face and someone said the words to the effect of, "This is not a doctor; do not scream." As she was having difficulty breathing, McChesney tried to push the towel away, but discontinued her effort when the man threatened to hurt her if she removed it. The man also informed her that the two of them "were going to have sexual intercourse."
Thereafter, McChesney managed to remove the towel and to observe the man through half-shut eyes. The man persisted and tried to pull up her shirt. At that point, McChesney pushed him away and pressed the nurse's button. A few seconds later, McChesney heard a nurse offering assistance. McChesney replied something to the effect of "Help" . Thereafter, the man "ran out the door."
At trial, McChesney identified Mr. Alexander as her assailant. McChesney testified that the man several times threatened her with harm if she did not cooperate. She also said she was afraid he would carry out his threat and he would rape her. The defendant was observed by two nurses in the hospital, one of whom positively identified him at trial as the one who exited from McChesney's room. The defendant was taken into custody near the hospital by the description given by the victim. He had a hospital towel around his neck.
DID THE TRIAL COURT ERR IN FAILING TO SUSTAIN APPELLANT'S DEMURRER TO THE INDICTMENT WHICH DID NOT STATE AN OVER ACT
TOWARD THE COMMISSION OF THE CRIME?
In arguing the first proposition, the appellant, George Lee Alexander, (hereinafter Alexander) outlined a pertinent portion of the indictment. The indictment reads as follows:
George Lee Alexander (a male person over the age of 18) late of the county aforesaid, on the 26th day of June in the year of our Lord 1985, in the county aforesaid, did unlawfully and feloniously design, endeavor and attempt to rape and forcibly ravish Cynthia McChesney, a female person over the age of twelve years, by forcibly placing a towel over her face and announcing his intention to have sexual intercourse with her while admonishing her not to scream, but failing in his attempt, . . . contrary to the form of the statute in such cases made and provided, against the peace and dignity of the State of Mississippi.
With respect to this indictment, counsel for Mr. Alexander dictated a demurrer into the record. Respectively, the lower court overruled the demurrer. The substance of Alexander's claim was that there was no overt act alleged to show an attempted rape.
In addressing Alexander's claim, this Court turns to the reasoning in Harden v. State, 465 So.2d 321 (Miss. 1985). In Harden, the defendant was charged with ...