Norris v. State , 87 Ala. 85 ( 1888 )

CLOPTON, J.

When the charges requested by the defendant are referred to the evidence, we discover no error in the refusal of the court to give them.

The indictment charges the offense of assault with intent to ravish. Defendant ashed the court to instruct the jury, if they believed from the evidence there was no intention to' commit a battery, then there was no assault, and he must be acquitted. Generally, to constitute an assault, a battery must be attempted, intended, or threatened — the commencement of an act, which, if not prevented, would produce a battery. As force is an essential constituent of the crime of rape, the intent to use force, if necessary to consummate the carnal connection, is essential to a conviction of assault with intent to ravish. But in this offense the force may be actual or constructive. — McQuirk v. State, 84 Ala. 435. Though there may be no intention in fact to apply actual force to the person, the offense of rape is complete, when unlawful intercourse is accomplished by overcoming resistance, and procuring submission on the part of the woman, by means of threats, or otherwise exciting fears of bodily harm; and in such case, should the accomplishment of the purpose be prevented by extraneous causes, there is an assault with intent to ravish.

Defendant was convicted of an assault merely. The verdict of the jury is explainable only on the theory, that they believed the testimony of the prosecutrix as to the conduct and acts of the defendant at the time of the alleged offense, but found that his intent was to induce consent by taking indecent liberties with her person, and not to compel acquiescence by force. If her testimony be true, defendant, without any indication of willingness or inclination on her part, put his arms around her, held and forcibly pressed her, and only released her on threats to call assistance. Imposition o£ his arms on her person, and holding and pressing her against her will, is, in legal contemplation, force, though there may have been no intention to hurt — unquestionably an assault and battery. — Goodman v. State, 60 Ga. 509. In the absence of proof of justification or excuse, the law implies the criminal intent, when the act is unlawful in itself. The charge requested by the defendant would have imported to the jury, when referred to the evidence, that it was incumbent on the State to make proof of intention to commit a battery, other than the presumption arising from its actual and intentional commission.

The other charges asked by defendant required the court to instruct the jury as to the sufficiency of the evidence. The reconcilability of the testimony of different witnesses, or, if irreconcilable, what witness they will believe, or what credit shall be given to a witness who is impeached by proof of contradictory or inconsistent statements, are questions exclusively in the province of the jury. And we have uniformly disapproved charges, which institute a comparison between the weight and force of the testimony of different witnesses, who may be regarded as equally credible, and as having equal opportunities of knowing the facts. — Ala. Fert. Co. v. Reynolds, 85 Ala. 19.

The defendant having placed himself in the position of a witness at his own request, he subjected himself, as to determining what credit was due to his evidence, to all the considerations applicable in cases of other witnesses, who sustain a close relation to the party calling them, or who have an interest in the result of the suit. — Clarke v. State, ante, 71. It was competent for the court to instruct the jury, that in weighing the evidence of defendant, they could consider his interest in the case. In Allen v. State, at this term, in reference to a charge on this subject, it is said: “The court should not have gone further in this connection, than to instruct the jury that, in determining the weight they would give to the defendant’s testimony, they should consider, along with all other circumstances having any bearing on the matter, the fact that he was the defendant.” The charge in that case was declared erroneous, because it went further, and authorized the jury to disregard the defendant’s testimony, for the reasons only that he was the defendant, and was contradicted by other witnesses. The credence to be given to his testimony should be left to the jury, unembarrassed by direct or indirect instructions from tbe court bearing on its sufficiency. Tbe charge in this case does not violate this rule.

Affirmed.