Opinion
6 Div. 51.
August 8, 1950. Rehearing Denied October 3, 1950.
Appeal from the Circuit Court, Walker County, Malcolm E. Nettles, J.
Powell MacLaurin, of Jasper, for appellant.
Wearing apparel of the victim of a crime at the time of the commission thereof should never be introduced in evidence unless it has some tendency to shed light on some material inquiry or illustrate the transaction at issue, though such evidence is only cumulative and may tend to influence the jury. Boyette v. State, 215 Ala. 472, 110 So. 812; Reedy v. State, 246 Ala. 363, 20 So.2d 528; Walker v. State, 32 Ala. App. 586, 28 So.2d 815. In a prosecution for assault to rape, evidence that prosecutrix made complaint is admissible and she may testify as to details of the assault, but neither she nor a third party can testify as to what she told such party as to what occurred or that she had told the third party the name of the person assaulting her. Curry v. State, 23 Ala. App. 140, 122 So. 303; Gaines v. State, 167 Ala. 70, 52 So. 643; Taylor v. State, 20 Ala. App. 161, 101 So. 160; Allford v. State, 31 Ala. App. 62, 12 So.2d 404. Intent to rape is a condition of the mind, coupled with physical force to carry out the desire over the physical resistance of the victim. Evidence must show such acts and conduct of the accused as that there will be no reasonable doubt of his intention to gratify his lustful desires against the consent of the female, and that the act would have been accomplished but for her physical resistance or some outside force causing him to desist. Lewis v. State, 35 Ala. 380; Curry v. State, supra. What the mother of prosecutrix did on being informed of the assault was inadmissible. Mays v. State, 218 Ala. 656, 120 So. 163; Curry v. State, supra; Cox v. State, 240 Ala. 368, 199 So. 806; Thompson v. State, 122 Ala. 12, 26 So. 141. Defendant, seeking reversal on ground that a juror concealed the fact that he was related to the prosecutrix, did not have the burden of showing injury, the test being not whether or not defendant was injuriously prejudiced but whether he might have been. Code 1940, Tit. 30, § 52; Roan v. State, 225 Ala. 428, 143 So. 454; Leach v. State, 31 Ala. App. 390, 18 So.2d 285.
A.A. Carmichael, Atty. Gen., and Jas. L. Screws, Asst. Atty. Gen., for the State.
On a charge of assault with intent to rape the evidence to be sufficient to justify a conviction should show acts and conduct on the part of accused which would leave no reasonable doubt of his intention to gratify his lustful desire against the consent of the female and notwithstanding resistance on her part or other intervening causes. Samuels v. State, 34 Ala. App. 13, 36 So.2d 561; Id., 251 Ala. 131, 36 So.2d 563. On the evidence in this case the issue was one for the jury. Gilbert v. State, 28 Ala. App. 206, 180 So. 306; Richardson v. State, 23 Ala. App. 260, 123 So. 283; Kelly v. State, 1 Ala. App. 133, 56 So. 15. The affirmative charge and motion for new trial were properly refused to defendant. Autry v. State, 34 Ala. App. 225, 38 So.2d 348. All attendant circumstances leading up to, eventuating in and growing out of the assault form a part of the res gestae and are admissible in evidence as such. Evidence that prosecutrix ran from the automobile to avoid a second assault and tore her stockings was admissible, and it was permissible to introduce such clothing. Collins v. State, 138 Ala. 57, 34 So. 993; Smith v. State, 253 Ala. 220, 43 So.2d 821; Grissett v. State, 241 Ala. 343, 2 So.2d 399; Puckett v. State, 213 Ala. 383, 105 So. 211. The physical condition and appearance of the prosecutrix immediately after the assault was admissible. Allford v. State, 31 Ala. App. 62, 12 So.2d 404; Id., 244 Ala. 148, 12 So.2d 407. Complaints made by the prosecutrix and statements shown to have been made by her relative to the assault were properly admitted. Lee v. State, 246 Ala. 69, 18 So.2d 706; Allford v. State, supra; Hall v. State, 248 Ala. 33, 26 So.2d 566; Mickle v. State, 226 Ala. 616, 148 So. 319; Buckley v. State, 19 Ala. App. 508, 98 So. 362. The relationship of one of the jurors to the prosecutrix was not within the fifth degree by affinity and afforded no ground for challenge. Code 1940, Tit. 30, § 55; Danzey v. State, 126 Ala. 15, 28 So. 697. But such point is not alone ground for new trial, and could not be raised for the first time on appeal. Batson v. State ex rel. Davis, 216 Ala. 275, 113 So. 300; Edwards v. State, 28 Ala. App. 409, 186 So. 582; Id., 237 Ala. 261, 186 So. 583; 23 C.J.S., Criminal Law, § 1446, p. 1174.
The basis for this appeal is a judgment of conviction for assault with intent to rape.
In many aspects the evidence is not in dispute.
It appears that at about midnight on January 15, 1949, Miss Evelyn Ingle (the prosecutrix), Bobbie Holt, and the accused left Rainbow Inn in Walker County, Alabama and proceeded in an automobile in the direction of Miss Ingle's home. En route, according to the testimony of the young lady, the appellant assaulted her. She freed herself from his approaches and ran forthwith to her home a short distance away.
We will not attempt to delineate the details of the occurrences. As to what transpired at the immediate scene of the alleged crime, the evidence is in irreconcilable conflict. The defendant admitted that he asked Miss Ingle "for a date", but she would not give her consent. He admitted, also, that he "teased" and fondled the young lady. It appears that both men in the company were drinking.
The prime factual inquiry centers around the question of whether or not the potency of the evidence is sufficient to sustain the verdict of assault with intent to rape.
Our review is invited to this inquiry by the request for the general affirmative charge in appellant's behalf and a motion for a new trial.
In determining whether or not the general affirmative charge was due the accused, we are required to take the evidence in its most favorable light for the prosecution. Jones v. State, 33 Ala. App. 451, 34 So.2d 483; Womack v. State, 34 Ala. App. 487, 41 So.2d 429; Maxwell v. State, 34 Ala. App. 653, 43 So.2d 323.
The rule by which we are guided is stated in Samuels v. State, 34 Ala. App. 13, 36 So.2d 561, 562: "On a charge of assault with intent to commit rape, the evidence, to be sufficient to justify the conviction, must show such acts and conduct on the part of the accused as would leave no reasonable doubt of his intention to gratify his lustful desire against the consent of the female and notwithstanding resistance on her part."
If there is evidence from which it can be reasonably inferred that the accused intended to gratify his lustful desires against the resistance of the female, at the time he assaulted her, a jury question is posed. Gilbert v. State, 28 Ala. App. 206, 180 So. 306.
In our view the evidence in the case at bar meets the demands of this doctrine. Kelly v. State, 1 Ala. App. 133, 56 So. 15; Brooks v. State, 8 Ala. App. 277, 62 So. 569; Dudley v. State, 121 Ala. 4, 25 So. 742; Pumphrey v. State, 156 Ala. 103, 47 So. 156; Brown v. State, 121 Ala. 9, 25 So. 744; Richardson v. State, 23 Ala. App. 260, 123 So. 283; Samuels v. State, supra.
We are convinced also that we would be out of harmony with the authorities to declare that the lower court was in error in denying the motion for a new trial on the ground the verdict was contrary to the great weight of the evidence. Booth v. State, 247 Ala. 600, 25 So.2d 427; Freeman v. State, 30 Ala. App. 99, 1 So.2d 917; Autry v. State, 34 Ala. App. 225, 38 So.2d 348.
Without dispute in the evidence the prosecutrix ran forthwith from the scene of the alleged assault to her home. En route she tore her stockings. Over the objections of appellant the hose were introduced in evidence. These were not sent up to this court, and we are not privileged to inspect them. In any event, the exhibits relate to circumstances that were not in dispute, and we are clear to the conclusion that the rights of the accused were in no manner jeopardized by the introduction of these garments. McKenzie v. State, 33 Ala. App. 7, 33 So.2d 484; Smitherman v. State, 34 Ala. App. 498, 42 So.2d 491; Stallings v. State, 249 Ala. 1, 32 So.2d 233.
Appellant's counsel attempted to prove that the reputation of Rainbow Inn was not good and that people of questionable character frequented the place. This related to immaterial matters, and the court properly denied the effort to make the proof.
Mrs. J.P. Ingle, mother of the prosecutrix, gave evidence relating to the time when her daughter reached home on the night in question. The witness was permitted to state that Miss Ingle appeared to be nervous and excited. The rule of evidence was not violated here. Badger et al. v. Hollon, 27 Ala. App. 534, 175 So. 700; Allford v. State, 31 Ala. App. 62, 12 So.2d 404; White v. State, 237 Ala. 610, 188 So. 388.
The mother testified concerning certain statements her daughter made upon her arrival at the home. This included some details of the occurrences between the prosecutrix and the appellant at the place of the alleged crime.
It was not improper for the State to prove by the mother that her daughter made complaint. Arrington v. State, Ala. Sup., 43 So.2d 644. However, this should not include the details of what occurred nor the name of the accused. Curry v. State, 23 Ala. App. 140, 122 So. 303; Taylor v. State, 20 Ala. App. 161, 101 So. 160.
A careful analysis of the record in this aspect leads to the conclusion that the applicable rule was not observed in every respect. We find, however, that when a violation appears proper objections were not interposed. If so, there were no exceptions reserved to the ruling of the court. In some instances the objections came after answer to the question.
In the state of the record we are not authorized to charge error on account of any ruling incident to the introduction of this character of evidence. York v. State, 21 Ala. App. 155, 106 So. 797; Kelley v. State, 32 Ala. App. 408, 26 So.2d 633.
It appears that the juror, Neil Dodd, was remotely related by affinity to the prosecutrix. This degree of relationship was not within the degree which would give rise to ground for challenge under the provisions of Title 30, Sec. 55, Code 1940.
At the beginning of the trial proceedings the judge inquired of the prospective jurors whether or not any of them were related by blood or marriage to the prosecutrix. There were no affirmative answers. Mr. Dodd was selected as one of the twelve jurors to try the case.
The question is presented in one of the grounds for a motion for a new trial. Evidence was taken in support of the position. Mr. Dodd testified that at the time of the trial he did not know the prosecutrix and had no knowledge of the remote kinship between his wife and Miss Ingle. It appears also that at the time the jury was selected neither the defendant nor his attorney knew of the relationship.
It seems that the authorities have settled this question contrary to the contention of the appellant. Carson v. Pointer, 11 Ala. App. 462, 66 So. 910; Edwards v. State, 28 Ala. App. 409, 186 So. 582.
There were several written charges refused to the appellant. Some of these are elliptical. Others are misleading. Those that state a correct principle of law are covered by the oral charge and given written instructions. Title 7, Sec. 273, Code 1940; Gettings v. State, 32 Ala. App. 644, 29 So.2d 677.
We have responded to all questions which merit our treatment.
It is ordered that the judgment below be affirmed.
Affirmed.