Brooks v. State

PELHAM, J.

— The defendant was convicted of an assault with intent to ravish, and it is earnestly insisted for the appellant that the evidence before the court Avould not authorize a finding of guilt of this offense by the jury; hut we are of the opinion, after a careful examination of the evidence set out in the transcript, that the facts before the jury, principally the testimony of the prosecuting witness (a single woman), were sufficient to authorize the jury to reach the conclusion that the defendant assaulted the prosecutrix with the intent forcibly to ravish her. In our opinion no proper or beneficial purpose could be served by setting out facts of this kind and entering into a detailed discussion of evidence of tbis cbaracter.

Tbe defendant, a married man (a fact well known to the prosecutrix, wlio was on the same social plane with him), did not deny being with her on the occasion in question testified to by her, nor did he deny having made improper advances to her at this time and place, and having put his hand upon her person for the avowed purpose and with the intent of having unlawful sexual intercourse with her; but his purpose and intent, according to the contention of the defendant, was not to force her against her consent, but to persuade her to willingly submit to him — to have unlawful sexual intercourse with her by her consent. Part of the defense, as developed upon the trial, rested upon the claim made by the defendant that the woman by her conversation and conduct prior to, and at the time of, the alleged offense committed by him, had led him to believe that she Avould be willing to submit to his embraces. The evidence introduced of this nature in support of such claim showed no more than that this unmarried woman, who was an intimate friend of a niece of the defendant’s, who lived in his home, had on a few occasions been not altogether as circumspect and discreet in her conversation with the defendant as propriety would approve in one of her station in life. Evidence was also introduced in support of the defendant’s claim in this particular having a tendency to show that the conduct of the prosecutrix subsequent to the alleged offense did not comport with the indignation and wounded sensibilities that would be natural to a young unmarried woman who had been subjected to such treatment as she claimed to have received at the hands of the defendant on the occasion she alleged he had attempted to forcibly ravish her. There was also testimony going to show that, after vigorous protest and resistance upon the part of the Avoman, the defendant voluntarily desisted from gratifying his lustful desires when accomplishment of this imputed and acknowledged purpose was possibly or reasonably attainable.

The first proposition discussed by counsel for the defendant in extensive brief filed has reference to the testimony admitted by the court of complaint having been made by the prosecutrix. It is contended that the evidence Avas not confined to what it is permissible to prove in the nature of a general complaint, but that the pros-ecutrix and other witnesses to whom the complaint was made were alloAved to testify to the details of the complaint against the defendant’s objection. It has been uniformly and repeatedly held in this state that it is permissible to prove in the first instance before the defendant has brought out the particulars or undertaken to impeach the prosecuting-witness only that the Avoman on whom the assault is alleged to have been committed made complaint of the occurrence generally, and that the state is not privileged to prove any of the details or that she stated in the complaint that any particular person assaulted her. — Bray v. State, 131 Ala. 46, 31 South. 107; Oakley v. State, 135 Ala. 15, 33 South. 23; Gaines v. State, 167 Ala. 70, 52 South. 643. But it has been held that it is competent to prove, not only the complaint, but also its character (Leoni v. State, 44 Ala. 110, 113), and that, “of course, it is competent to prove whatever circumstances and signs of injury she showed.” — Scott v. State, 48 Ala. 420, 421. On the direct examination of the prosecuting witness the solicitor brought out only the facts that she had made complaint generally to certain named parties, and had showed to her sister (one of the parties to whom- complaint had been made) the bruised places on ber person. This was permissible, and does not violate the recognized rule of law under the authorities last above cited. In the case of Leoni v. State, supra, it was held allowable for the purpose of proving the complaint and its character to show that the prosecutrix not only had showed bruises on her arms and legs to the person to whom she had made complaint, but had exhibited a soiled and bloodstained garment in the same connection, although the learned judge'rendering the opinion of the court in that case expressed grave doubt and suspicion of the fairness and truthfulness of the girl’s statement because of the conditions and circumtsances under which it was made. — See, also, State v. Baker, 106 Iowa, 99, 76 N. W. 509; State v. Peterson, 110 Iowa, 647, 82 N. W. 329; Jacobs v. State (Tex. Cr. App.) 146 S. W. 558.

When the defendant inquired into the particulars of the complaint on cross-examination, the evidence relating thereto was rendered admissible by both parties, and the introduction by the defendant of evidence seeking to impeach the prosecutrix opened the door for the introduction of evidence by the state to sustain the pros-ecutrix by showing that her statements in making the complaint corresponded with her testimony on the trial. Griffin v. State, 76 Ala. 29; Barnett v. State, 83 Ala. 40, 3 South. 612. Even if the testimony of the parties to whom complaint Avas made, to the effect that the pros-ecutrix complained of being sick, that her back pained her, and of nervousness, etc., can be said to be in violation of the established rule relating to-what may be proven in the first instance, this evidence was nevertheless permissible, for it was introduced after the defendant had inquired into the particulars of the complaint on the cross-examination of prosecutrix for the evident purpose of impeachment, and subsequently the defendant and other witnesses were introduced by the defense for the purpose of impeaching the prosecutrix in regard to the complaint made. — Barnett v. State, 83 Ala. 40, 3 South. 612; Griffin’s Case and Barnett’s Case, supra.

It was not improper to allow the witness, Mrs. Lath-am, at whose house the prosecutrix was boarding, to state what the physical condition of the prosecutrix was, and to testify that at the time the complaint was made prosecutrix was “nervous.” — Sims v. State, 146 Ala. 109, 41 South. 413.

The defendant brought out the fact in the cross-examination of the prosecutrix that she did not swear out a warrant charging the defendant with the crime until Saturday, December 14, 1912, showing a lapse of time since the alleged commission of the offense on Saturday night, October 12, 1912 (as testified to on the direct examination), of a day or two over two months. This delay in making the formal charge brought out on the cross-examination of the witness by the defendant rvas material as affecting the weight and credibility of the testimony of the prosecutrix, and of the bona fides of 1 lie charge made by her, and it was therefore proper for the court to allow the witness to make an explanation of the delay, and give the reasons why she did not make the affidavit earlier. In making the explanation and giving the reasons, it was permissible for the pros-ecutrix to state her mental status in this connection and give the reasons producing it, for otherwise it would not be possible to meet the attack made. By bringing out this fact the defendant assails the motive actuating the prosecutrix, and this can only be met and answered by showing her mental status, her undisclosed motives or intentions, and what operated on her mind to produce them and cause the delay.- Jacobi v. State, 133 Ala. 1, 32 South. 158. It was proper to accord the state the opportunity to rebut- tbe unfavorable inferences that might be drawn from tbe prosecutrix’s conduct in delaying by explaining tbe circumstances causing it. — Pitman v. State, 148 Ala. 612, 42 South. 993. For tbe purpose of rebutting any unfavorable inference arising out of tbe delay, tbe prosecutrix may state tbe reasons why sbe did not act earlier. — Polson v. State, 137 Ind. 519, 35 N. E. 907; People v. Ezzo, 104 Mich. 341, 62 N. W. 407; People v. Mayes, 66 Cal. 597, 6 Pac. 691, 56 Am. Rep. 126; State v. Knapp, 45 N. H. 148; State v. Wilkins, 66 Vt. 1, 28 Atl. 323; People v. Marrs, 125 Mich. 376, 84 N. W. 284; State v. Bebb, 125 Iowa, 494, 101 N. W. 189.

Tbe court properly permitted tbe state to cross-examine tbe defendant’s witness Susie Mae Rountree in regard to tbe undelivered letter written by ber to tbe pros-ecutrix.' Tliis evidence bad a tendency to show tbe relations existing between the parties, to show bias and to impeach a portion of tbe testimony of this witness, and to contradict tbe defendant.

That part of the answer of tbe defendant in reference to a conversation between him and the prosecutrix about a Miss Hallie’s riding astride that was excluded by tbe court is shown by tbe bill of exceptions to have been a voluntary statement by tbe witness, and not responsive to tbe question asked, and the court cannot be put in error for excluding it. The witness was afterward allowed to narrate everything on this subject that took place in tbe conversation he was asked about, and subsequently testified about the matter excluded without objection.

Tbe fact that a Miss Latham and others went to Huntsville with tbe defendant in bis automobile at a time subsequent to the alleged assault bad no tendency to prove the issues before the court. It Ayas an indirect attempt to impeach a witness without laying a proper predicate. The prosecutrix was not shown to have been in any way connected with this matter, and the action of the court in refusing to permit this fact to be proved was free from error.

The testimony of the witness Mattie Lee Latham that the person to whom the prosecutrix was talking over the telephone was her friend Susie Mae Roundtree was properly allowed to go to the jury. The witness testified that “Susie Mae” was the only person the pros-ecutrix ever talked to over the party-line telephone used on that occasion. She was present and heard the conversation of the prosecutrix with the person on the other end of the line, was well acquainted with both parties, lived in the house with the prosecutrix, and testified that she knew the prosecutrix was talking with her friend “Susie Mae” — that she knew this, that she could tell from the conversation she heard. There was other evidence showing that the conversation in question was between the prosecutrix and the person designated by the witness. The fact that the telephone conversation was had by the parties was admitted, and it was only what was said that was a matter in dispute or an issue in the case, and it was competent for the witness to testify to what she heard one of the parties say on this occasion when it was uncontradicted that the conversation between them had taken place. — W. U. Telegraph Co. v. Saunders, 164 Ala. 234, 51 South. 176, 137 Am. St. Rep. 35.

In different charges in varying language the defendant asked written instructions to the effect that, if the jury believed the evidence, they could not find defendant guilty, or must acquit the defendant of an assault with intent to rape. From the argument and brief of counsel it appears that the principal contention along these lines rests upon the idea that there could be no proper conviction for the highest degree of crime included in the indictment, because a survey of the entire testimony leads to the reasonable conclusion that the force used was only for the purpose of bringing about an acquiescence upon the part of the woman and to obtain her consent to permissive intercourse. It is argued that a conclusion of the defendant’s guilt of an assault with an intent to rape cannot be drawn from the whole evidence where there is some evidence of the prior conduct of the prosecutrix that might give color to the honest belief on the part of the defendant that she would assent, when the evidence also shows that the defendant desisted from his purpose voluntarily under circumstances when its accomplishment was possibly or even probably attainable. The desistance, according to the testimony of the prosecutrix, was only after her strenuous resistance, louder crying, and prayers to the Almighty to save her; and, while this proof that the defendant voluntarily desisted from the pursuit of his purpose to carnally know the prosecutrix is a circumstance which should be accorded much weight by the jury in determining the truth of the charge preferred, yet what credence and weight they give to the evidence is a matter entirely for the jury, and if they find from the evidence that the defendant committed an assault upon the prosecutrix with intent to ravish her, although he after-wards voluntarily desisted, he would nevertheless be guilty of an assault with an intent to commit rape. — 1 Mayfield, Dig. p. 88, § 1, subd. 3, citing Lewis v. State, 35 Ala. 380. The proposition is thus stated in the text of Cyc.: “If the accused had at any time during the assault the actual intent to accomplish his purpose in defiance of any resistance the woman might make, he is guilty of assault with intent to commit rape, and the subsequent abandonment of bis purpose is no defense.” —33 Cyc. 1436. See, also, authorities cited in footnote 65 in support of the text.

We think the evidence, although in some respect unsatisfactory and equivocal perhaps, yet affords sufficient facts froiii which the jury could infer that an assault on the person named in the indictment was made by the defendant with the intent to ravish her before desistance, and the charges above referred to instructing the jury that they could not find the defendant guilty of 'an assault with intent to rape were properly refused. Although evidence may be in some particulars conflicting and equivocal, it is nevertheless a question for the jury. The trial court, or this court on review of a finding made by the jury on the evidence, may not usurp the province of the jury in weighing the evidence and passing upon the credibility of the witnesses; and, if the evidence affords sufficient inferences to support the finding of the jury, it should not be overthrown and held for naught simply because the judges reviewing the finding on the evidence possibly, or even probably, would arrive at a conclusion different from that of the jury. This duty does not rest upon the reviewing court and is not to be included in its functions; it is entirely within the province of the jury, upon whom alone the responsibility rests. In the case of Jacobi v. State, 133 Ala. 1, at page 17, 32 South. 158, at page 163, it was said by McClellan, C. J., speaking for the court in a case where the charge was the same as that under consideration here and the facts disclosed were somewhat similar: “That there was evidence before the jury tending to support every material allegation of the indictment there can be and is no sort of doubt; and for the court below to have given the affirmative charge requested by the defendant would have been a most palpable and flagrant invasion of the right and exclusive province of the jury to pass upon the sufficiency of this evidence.”

Charge No. 85 in effect refers to the jury a question of law. It predicates a finding by the jury of the constituent elements and ingredients of the offense charged as a necessary prerequisite of their finding against the defendant, without defining what these elements and ingredients are. — Whatley v. State, 144 Ala. 68, 39 South. 1014; Andrews v. State, 159 Ala. 14, 48 South. 858.

The charge is also faulty and misleading in requiring the state to show by the evidence every fact necessary to establish the defendant’s guilt when the jury would be authorized to consider the evidence introduced in behalf of the defendant in this connection also. It is not error to refuse a charge that predicates a finding by the jury on the state’s evidence alone and not upon the whole evidence. — Stallworth v. State, 155 Ala. 14, 46 South. 518. See, also, Welch v. State, 156 Ala. 112, 46 South. 856; Davis v. State, 165 Ala. 93, 51 South. 239; Grand v. State, 97 Ala. 35, 11 South. 915. It not infrequently happens that the evidence introduced by the defendant weighs heavily with a jury in establishing the defendant’s guilt, and a charge withdrawing part of the evidence from the consideration of the jury and predicating a finding only on that part included should be refused.

Refused charge No. 5 singles out and gives undue prominence to a part of the evidence. It also has a misleading tendency to offend a recognized rule of law applicable to that part of the testimony going to show that the defendant undertook to accomplish the act by force of a violent nature.

The guilty intent may be inferentially drawn from the use of force of this character. — Dudley v. State, 121 Ala. 4, 25 South. 742. Nor would the fact of desistance under tbe conditions predicated be sufficient to authorize the court to charge as a matter of law that the defendant was not guilty of the offense charged; for anything to the contrary predicated in the charge the defendant violently put his hands forcibly on the prosecu-trix for the purpose and with the intent of ravishing her and afterwards abandoned his purpose.

The substance of charge No. 6 is given in charge No. 8. This charge also restricts and limits the intent necessary as an ingredient of the crime to the time of the defendant’s putting his hands upon the prosecutrix. As referred to the evidence in this case, the intent may have existed at another time during the transaction or assault testified to by the prosecutrix than just at the time the defendant placed his hands upon her (as testified to by him), and if so, and if the jury so determined in considering this evidence, then he would nevertheless be guilty of the intent necessary as an element of the crime, notwithstanding the defendant did not have the intent at the particular time predicated.

Charge No. 7 is substantially the same as given charge 20.

Charges 10 and 11 wherein they are not argumentative or abstract are covered by the given charges. No duty rested upon the court to define or charge upon what constituted an attempt, as no inquiry involving that matter was before the court on the controverted issues of this case. Counsel for defendant in brief practically concede that the defendant is guilty of an aggravated assault in an attempt to have sexual intercourse with the prosecutrix, the controverted question being whether or not the assault was committed with an intent to ravish, and this phase of the charges is fully covered by the given charges.

Charge 13 is argumentative. The legal principle embodied is covered by charge 8.

Charge 17 is faulty and misleading, in that it does not exclude the idea of the evidence raising more than a mere suspicion. The charge ignores the effect or tendency of a part of the evidence. — Rigsby v. State, 152 Ala. 9, 44 South. 608. It does not state if the evidence raises no more than a mere suspicion, but only if it raises such a suspicion. The instruction might well have been refused for its confusing tendency. “This charge,” as used in it, may be taken to have reference to the charge upon Avhich the defendant was on trial, which included an assault and assault and battery, and the predicate upon which an acquittal is based would not authorize an acquittal of the lesser offenses included in the indictment. — Kirby v. State, 5 Ala. App. 128, 59 South. 374.

Charge A is both misleading and argumentative. The “right” to act under the circumstances and conditions predicated is not a right known to the law. Charges which assume as a matter of law questions which are for the determination of the jury are properly refused. —C. of G. Ry. Co. v. Hyatt, 151 Ala. 355, 43 South. 867.

Charge B is covered by the given charges.

Charge C can be construed as singling out and referring to a part only of the evidence, and contains an instruction for a finding by the jury based only on that part and ignoring other evidence. A charge is bad if not predicated upon a consideration of all the evidence. — Welch v. State, 156 Ala. 112, 46 South. 856; Hosey v. State, 5 Ala. App. 1, 59 South. 549. The intent to ravish as a criminal ingredient is limited to the time the defendant put his hands on the prosecutrix as testified to by him. The charge also accentuates a part or phase of the evidence, and singles out that part for special consideration. — L. & N. R. R. Co. v. Price, 159 Ala. 213, 48 South. 814; Hosey v. State, 5 Ala. App. 1, 59 South. 549.

Charge D requires full proof of guilt. The jury is uot required to be satisfied absolutely and without qualification, but only to be satisfied beyond a reasonable doubt. To satisfy the mind of a fact, it must be relieved of all doubt or uncertainty, and this is not required. —Torrey v. Burney, 113 Ala. 496, 504, 21 South. 348; Bones v. State, 117 Ala. 138, 23 South. 138; Prince v. State, 100 Ala. 146, 14 South. 409, 46 Am. St. Rep. 28. The charge is misleading, in that it fails to hypothesize whether the gratification of passion was with or without consent, and limits the time that the guilty intent may he found to exist to the time when the defendant laid hands upon the prosecutrix.

Charge E needs no discussion, after what we have said, to point out its infirmities.

Charge F predicates a finding by the jury on facts constituting only a part of the evidence introduced in reference to the same matter, thereby withdrawing from the consideration of the jury the whole evidence on that subject.

Charge 18 is more than covered by given charge 27.

Charge 21 erroneously authorizes an acquittal of every charge embraced in the indictment on the facts predicated. As correctly limited to an acquittal of assault with intent to ravish, the principle involved appears in given charge 27.

Charge 24 is argumentative. It is also bad in stating that the law recognizes the right therein asserted, as pointed out in demonstrating that the court’s action in refusing charge A was free from error.

Charges 26 and 43 are properly refused for the reasons assigned in discussing charge 21.

Charge 22 is bad for the reasons given in passing on ■charge 6.

Charges 38 and 40 are faulty in assuming that prior intimate relations existed between the parties. The court cannot be required to give a charge directing the attention of the jury to any particular phase of the evidence. Nor was the fact assumed justified by the evidence. — Malchow v. State, 5 Ala. App. 99, 59 South. 342.

These charges single out and misstate that part of the evidence upon which they are based. — Kirby v. State, 5 Ala. App. 128, 59 South. 374.

We have discussed all the assignments of error that are insisted upon and argued, or barely stated as insisted upon, in brief of counsel, and have examined the record with reference to all other questions presented. Our investigation and consideration of the case presented on the transcript shows no reversible error, and the judgment of the court below will be affirmed.

Affirmed.