Lewis v. State , 35 Ala. 380 ( 1860 )

STONE, J.

Michael Busby and George Harless were examined as witnesses in the trial of this cause; the former for the prosecution, and the latter for the defense. An attempt was made to discredit Busby, by proving that in his deposition before the committing magistrate, he had made statemeuts contradictory of his testimony on the trial in chief. As a predicate for introducing the deposition, the witness Busby was asked as to his former testimony, which he admitted. On re-examination, he was asked why lie had testified as his deposition disclosed, and answered, that George Harless, the other witness» had told him to swear it; and that if he did not, he would whip him. Harless, who had been previously interrogated, denied on oath that he had thus tampered with the witness Busby. Thereupon, the defendant ofiered evidence to sustain the general credibility of the witness Harless ; the testimony was excluded by the court, and we are now asked to decide whether such evidence was admissible.

We entertain no doubt that the circuit court ruled correctly on every question connected with this branch of the present case, except the last — namely, its refusal to receive evidence of the general credit of the witness Harless, and that on this point the court erred. The only sensible reason for requiring tliat, before a witness is attempted to be discredited by proof of previous contradictory statements, he shall be asked on oath in regard to such statements, is, that he may have the opportunity of explaining such apparent contradiction. — See the Queen’s case, 2 B. & B. 311. The court rightly ruled in this case, that Mr. Busby should be permitted to explain such contradiction, if he could.

In offering his explanation, he inculpated the witness Harless, by testifying that he (Harless) had interfered actively to corrupt him, the said Busby. Harless, on his examination, had been interrogated as to such attempt to corrupt Busby, and had denied it. This preliminary examination was proper. The result of the whole matter was, that the defendant had attempted to discredit Busby, by proving his prior contradictory testimony; and the prosecution sought to discredit Harless, by testimony tending to prove that he had attempted to corrupt the witness Busby.

In Morgan v. Frees, 15 Barb. (Sup. Ct.) 352, it was ruled, that when a witness has attempted to suborn a witness to swear falsely in the cause, and, on cross-examination, denies that he has done so, the opposing party may give evidence to contradict him in that respect. The court say, “such evidence is addressed to his conduct in the particular suit, and ought to detract very much from his credit.” — See, also, Yervin’s case, 2 Camp. 637 ; Atwood v. Weltow, 7 Conn. 06.

Testimony having been adduced tending to discredit the witness Harless, it was competent to introduce evidence to sustain his general credit as a truthful witness. Hadjo v. Gooden, 13 Ala. 718; 1 Greenl. Ev. § 488 ; 2 Phil. Ev. (4th Amer. ed.) 961-2; Melhuish v. Collier, 15 Ad. & El. N. S. (69 Com. Law,) 878.

[3.] The question of the sufficiency'of the indictment, and the refusal of the court to give the charges asked, render it necessary that we shall define the word attempt, in section 3307 of the Code. That section reads as follows :

“Every slave, or free negro, who commits, or attempts to commit, a rape on any white female, must, on conviction, suffer death.”

It is urged for plaintiff in error, that there can be no attempt, under this section of the Code, without at assault. If this argument be sound, then the word attempt in this statute is the synonym of ‘assault with intent,’ as it is manifest there can be no attempt to commit a crime, unless the perpetrator actually intend to commit that crime. Against this construction we may be permitted to remark, that in the very article, and on the very page on which section 8307 of the Code occurs, are found the words attempt, and assault with intent, as descriptive of offenses by slaves. Section 3311 contains both forms of expression, in describing two several offenses. The word intent occurs in sections 3311 and 3312. The word attempt occurs in section 3307 and 3311. Section 3308 denounces “ consulting or conspiring to rebel” as a capital offense. It is manifest that, to consult or conspire, does not imply the performance of any physical act; while attempts, and assaults with intent, do imply physical exertion. If the word attempt was used as the synonym of assault with intent, why did the legislature employ one form of expression in two of the offenses provided for on page 591 of the Code, and the other in describing other offenses on the same page? The fact that the two forms of expression wore employed in such close proximity, furnishes strong persuasive evidence that a different meaning was att-.chod to each.

A. further argument against this construction: The wo.1 d attempt in section 3311 is evidently used in a sense different from an assault with intent. Slaves may attempt to poison, and may thus incur the penalty provided by that section, without committing an assault. If, then, we give to the word attempt, in section 3307, the meaning which is obviously the true sense of the same word in section 3311, an attempt to commit a rape by a slave on a white female may be complete within the statute, and yet no assault he actually committed.

The word attempt, in its largest signification, means a trial or physical effort to do a particular thing. Mr. Bishop, in his excellent treatise on Criminal Law, says : “When we say that a man attempted to do a thing, we mean that he intended to do specifically it, and proceeded a certain way in the doing. The intent in the mind covers the thing in full; the act covers it only in part.” 1 Bish. Grim. Law, § 511.

In the kingdoms of continental Europe, this subject seems to have received particular attention.- — -See 1 Bishop’s Grim. Law, § 512, and note. In the Spanish Code, it is declared, that “ criminal attempt is a direct commencement of execution, by external acts, the realization of which is hindered by causes independent of the will of the author.”

Judge Buffin, of the supreme court of North Carolina, said, “Attempt is expressive rather of a moving towards doing the thing, than of the purpose itself. An attempt is an overt act itself.” — The State v. Martin, 3 Dev. Law, 329. See, also, Uhl v. Commonwealth, 6 Gratt. 710; State v. Davis, 1 Ired. Law, 125; Morton v. Shopper, 3 Car. & Bayne, 373; Stephens v. Myers, 4 Car. & P. 349 ; Rex v. Higgins, 2 East, 12.

We are unwilling to lay down a rule, applicable to all cases, for determining when attempts have proceeded so far as to be within the punitive provisions of the law. Much must depend on the nature of the act- attempted. We hold, that if Lewis, the slave, actually intended and attempted carnally to know the prosecutrix, by violence and against her consent, and prosecuted his purpose so far as to put her in terror, and render flight necessary to escape from his wicked attempt, then he was guilty oí an attempt to commit a rape, within the meaning of the statute. To justify his conviction, however, the jury must be satisfied, beyond a reasonable doubt, that such was his purpose, and that his attempt had this extent. An indecent advance, or importunity, however revolting, would not constitute the offense.

In what we have said, we do not wish to be understood as intimating any opinion on the probabilities or improbabilities of the defendant’s guilt. That question is not for our determination. We are simply declaring a rule, to be observed in another trial of this case.

We deem it unnecessary to announce any opinion on 'the charges asked and refused, further than to say, if the attempt was in fact made, and had progressed far enough to put Miss Ozley in terror, and render it necessary for her to save herself from the consummation of the attempted outrage ty flight, then the attempt was complete; and an after-abandonment by the defendant of his wicked purpose, if it had proceeded thus far, could not purge the crime. To bring the case within this principle, there must have been an intention, and an actual attempt to have carnal knowledge of her, by force and against her consent. — Lewis v. The State, 80 Ala. 54.

On the trial, the jury should be instructed to give due consideration to the manner of the slave — to the character of his pursuit; whether earnest and active, or dilatory— in determining whether he intended and attempted, within the rule above declared, to haye carnal connection with Miss Ozley, by force, and against her consent. If the proof shows that Lewis voluntarily desisted from the pursuit, when the accomplishment of his imputed purpose was probably, or even possibly attainable, this is a circumstance which should weigh much against the truth of the charge contained in the indictment. On the contrary, if he abandoned the pursuit, because he was unable to overtake Miss Ozley, or because he feared to proceed further, lest he should encounter other opposition, then the fact that he desisted should weigh nothing in his favor.

[4.] In the case against Anthony, 29 Ala. 27, the indictment was framed under section 3311 of the Code. What we there said can shed no light on the sufficiency of this indictment, which rests on section 3307 of the Code. There is nothing said in that opinion, which, rightly construed, requires, even in a proceeding under section 3311, that the indictment shall express the degree or extent of action performed by the defendant, in^the alleged attempt to poison. The word attempt was there understood to express that degree and extent, with sufficient definiteness. So, ill this case, we bold that an indictment, under section 3307 of the Code, need not aver how near to its full accomplishment the attempted rape had been carried. Having shown that a slave may be guilty of an attempt to commit a rape on a white fepaale, without actually assaulting her, if we were to go further, and require that the indictment shall express the particular acts of which the attempt consists, we should greatly innovate on our present brief and simple forms of indictment, and introduce a particularity of averment and description, which vrould, in many cases, amount to a denial of justice. — See forms of indictments, page 698 of the Code; also, § 3503. The indictment in this case is sufficient. — Rex v. Fuller, 1 Bos. & Pull. 180; Lawson v. State, 20 Ala. 65; Sterne v. State, ib. 43.

The judgment of the circuit court is reversed, and the cause remanded. Let the prisoner remain in custody until discharged by due course of law.