State v. Kelly

June 28, 1920. The opinion of the Court was delivered by The appeal is from a verdict of judgment of the Court of Sessions. The indictment is for assault with intent to ravish. The verdict was guilty with recommendation to mercy; and the judgment was 10 years service on the public works. The defendant is a negro aged 64 years; and the white female alleged to have been assaulted was at the instant 13 years of age. The appeal makes the single and naked issue that there is no evidence to support the verdict. And that is true.

The Court relied on State v. Johnson to be found in84 S.C. 45, 65 S.E. 1023, but the circumstances of that case differ from those in the case at bar, and the facts breed the law.

The defendant here was at the instant sexton of the church in which the crime is charged to have been committed, and had resided in the community 24 years, and in his whole life theretofore there had been no criminal charge brought against him. The only testimony which touches the event is that of the female child alleged to have been assaulted. Let all of it be reported, with the omission of the child's surname and that of her father.

It is true that from the beginning and until now "every imagination of the thoughts of his (man's) heart was only evil continually." But when a man is charged with evil thoughts ripened into action, his fellow triers cannot rest judgment on their knowledge of original sin inherent in the prisoner, else none of us would escape judgment. The evil thought, which is the criminal intent, only becomes unlawful when he who harbors it proceeds to put it into action. The single act of the defendant, testified to by the female child, does not tend to prove that when he put his hand on her hand he intended to ravish her. To so hold would hurt the law more than it would hurt the defendant.

The judgment is reversed, with direction to enter verdict of not guilty.