Opinion
8 Div. 950.
June 24, 1930.
Appeal from Circuit Court, Colbert County; J. Fred Johnson, Jr., Judge.
Robert Lee, alias Bob Lee, Randolph was convicted of assault to ravish, and he appeals.
Affirmed.
The following charges were refused to defendant:
"B. I charge you, gentlemen, that if you believe the evidence you cannot convict the defendant as charged."
"D. I charge you that if you believe from the evidence that Jabo assaulted Miss Landers you cannot convict the defendant."
"X. I charge you, gentlemen, that Jabo leaving and quitting his job and his likeness to the defendant may be taken into consideration in arriving at your verdict.
"Y. I charge you, gentlemen, that if you believe the evidence of witness Walker you cannot convict the defendant.
"Z. I charge you, gentlemen, that the cloak of innocence is about the defendant and it follows him throughout the trial and that the burden of proof is on the State to prove his guilt beyond a reasonable doubt."
C. E. Carmichael, of Tuscumbia, for appellant.
Charlie C. McCall, Atty. Gen., for the State.
No briefs reached the Reporter.
The defendant was positively identified by the assaulted party as being the person whom she charged with an attempt to criminally assault her. The question was submitted to the jury under the charge of the court. Embraced in the charge is not only the higher degree of assault to rape but the lower degrees of assault and battery and a simple assault. Therefore refused charge B was misleading.
There was no legal evidence connecting "Jabo" with the commission of the crime; hence refused charge D was abstract.
The mere fact that Jabo bore some slight resemblance to defendant and some three or four days after the alleged crime left the community would not tend to connect Jabo with the crime, and hence charge X was properly refused.
Refused charge Y singles out a part of the evidence to the exclusion of all the other evidence in the case, and refused charge Z is argumentative.
We find no prejudicial error in the record, and the judgment is affirmed.
Affirmed.