
    Ralph Davis v. State of Mississippi.
    [42 South. Rep., 542.]
    Criminal Law and Procedure. Code 1892, § 974. Conviction of attempt. Guilty of crime itself.
    
    Code 1892, § 974, forbidding a conviction for an attempt to commit, if defendant be guilty of the crime charged, requires a reversal of a judgment violative of its terms, although the prosecuting attorney abandoned the charge and sought only a conviction for an attempt to commit the crime laid in the indictment.
    From, the circuit court of Wayne county.
    Hon. William H. Hardy, Judge.
    Davis, the appellant, was indicted for the rape of one Dovie Williams, a female child under the age.of ten years; upon the trial of the case, the district attorney, abandoning the charge, sought only a conviction for an attempt to commit the crime laid in the indictment; the jury found the defendant guilty of an attempt to commit rape, and the court below sentenced him accordingly, from which conviction and sentence the defendant appealed to the supreme court. Other facts are stated in the opinion of the court.
    
      D. W. Heidelberg, for appellant.
    
      R. V. Fletcher, assistant attorney-general, for appellee.
   Calhoon, J".,

delivered the opinion of the court.

The indictment is for a capital felony. When the case was called for trial, the district attorney “abandoned the charge” and said he would try on the charge of “attempt” to commit that felony. But the proof is overwhelming that the crime was in fact perpetrated to absolute completion, if there was any offense committed at all, as the jury had full warrant to believe there was. Not having the power to repeal statutes or make laws, there was no right to try or convict of an attempt, under section 974, Annotated Code 1892.

Reversed and remanded.  