Autry v. State

• Decision Date: 18 January 1949
• Docket Number: 1 Div. 582.
• Citation: 38 So.2d 348,34 Ala.App. 225
• Parties: AUTRY v. STATE.
• Court: Alabama Court of Appeals

38 So.2d 348

34 Ala.App. 225

AUTRY v. STATE.

1 Div. 582.

Alabama Court of Appeals

January 18, 1949

Outlaw, Seale & Kilborn, of Mobile, for appellant.

A A. Carmichael, Atty. Gen., and Jas. T. Hardin, Asst. Atty Gen., for the State.

HARWOOD Judge.

This appellant was indicted for and by a jury found guilty of assault with intent to rape. His punishment was fixed at imprisonment in the penitentiary for a term of twenty years.

The evidence introduced by the State tended to show that Mrs James Johnson, who was Miss Essie Stone at the time of this occurrence, having married prior to the trial below, was a clerk in a dry goods store in Plateau, a community near Mobile. For convenience she will hereinafter be referred to as the prosecutrix. On the afternoon of 13 May 1947, around three o'clock, the appellant entered the store and stated he wanted to buy a pair of shoes. The prosecutrix procured two pairs and told him to try them on. At this time two men entered the store, and as to prosecutrix's version of what happened from this point on we will quote her testimony from the record:

'Two white men came in the door as I went back over there. I had gone to the right hand back of the store and got the shoes and took them over there to him, and I told him to try the eleven on, and I handed it to him, and the white men were in the store, and I told him while he tried them on I would go wait on the two men. Well, I went and waited on the white men, and when I come back to see if he had tried the shoe on he said he had done tried it on, and I ask him did it fit, and he said, yes, it fit; and I asked him did he want it, and he said no, because it had a rubber heel, and he wanted a leather heel. I told him, well I didn't have a leather heel, and I still asked him would he like to have a pair of shoes, and he said, no. So, when I went, had to go back to the right hand corner of the back of the store to put the shoe back on the counter where they were, on the stack where the shoes were, and when I started from behind the counter he grabbed me by the shoulders and told me not to scream, if I did he would kill me, so I didn't scream, and he kept pushing me back behind the counter, and when he got me back behind the counter he mashed down on my shoulders and my knees give away, and I fell to the floor, just squatted, and then I propped my hands behind me, to keep him from pushing me on down on the floor. He kept telling me not to scream, not make a sound, and to lay down, and I told him I was not going to lay down; and he kept telling me all of the time not to scream, if I did that he would kill me, that he would cut me to death right there behind the counter if I screamed. About that time he had me pushed over far enough on the floor that I could see through the glass show case to the door, and customer came in and got a Pepsi Cola out of the ice box. We had an electric ice box in there, and she went on and drank it, and she had a quarter, and the Pepsi Colas were six cents, and I kept trying to persuade him to turn me aloose to go up there and collect the money, and he kept telling me if I made a sound he would kill me, that he would cut me to death behind the counter, if I screamed or if I made a sound at all, and I didn't never scream, but I finally persuaded him to turn me aloose to go up there and collect the money, and when I went up there and taken the money, I taken her money, and I rang it up on the cash register, and I give her her change and then I slammed the cash register drawer too and ran out of the door and got Mr. McCurley and told him what had happened.'

The prosecutrix further testified that when she fled the store a door in the rear was closed and barred.

She also testified that at the time of this alleged assault the appellant was wearing a blue cap or 'tam,' and that when he tried on the shoes she observed that he was wearing white ribbed socks, and that a hole, which appeared to have been cut, was in the toe of the sock on his right foot.

On cross examination the prosecutrix testified that at the preliminary hearing she had stated that the man who assaulted her had a scar on the left side of his face.

She did not describe the clothing of the man who assaulted her to the police officers, other than describe the tam or cap, and his socks. She also mentioned the type hair cut he had.

The appellant did not place his hands on her breasts, or tear her clothing, or make any indecent remarks, but did keep pushing down on her and telling her to lay down, and that he would kill her, or cut her to pieces if she screamed. She kept struggling to regain her feet.

Mr. E. D. McCurley, a witness for the State, operates a filling station across the road from the store in which prosecutrix worked. He testified on the afternoon in question he saw her running across the road, calling to him as she ran. She reported to him that a Negro in the store had attacked her and requested that he 'see about it.' The prosecutrix was in a hysterical condition. He went into his filling station to procure a pistol, and as he started across the road to the store a highway patrol car stopped at a red right and he reported the matter to the two patrolmen in the car. Together with the patrolmen Mr. McCurley entered the store and searched it. They could find no one in it, but did find that the rear door was open and the screen door thereto was unlatched.

On cross examination Mr. McCurley testified that he did not notice any bruises on prosecutrix, or any tears or dirt on her clothing, though her clothing seemed 'upset,' or 'out of shape.'

Sallie Perkins, a witness for the State, testified that at around three o'clock on the afternoon in question she was standing on the rear porch of a house just back of the store in which the prosecutrix worked. While there she saw the appellant run past, and continue running until he turned around a house when she lost sight of him.

Appellant was dressed in khaki clothes, and had on a white belt.

Later that same afternoon, in Prichard, she identified appellant, who was then in custody, as the man she had seen running as before set out.

The above constituted the State's main case.

For the defense, Mr. Fred Sanders, Jr., who was a police officer, testified that he got a call between 3:50 and 3:54 on 13 of May 1947, and went to O'Connor's store. He assisted in the search in the store. The back door was unbolted, and the cross bar was leaning up against the wall by the door.

He later went into the house back of the store and there he contacted State's witness Sallie Perkins.

Around 4:40 P.M. he received another call, and then proceeded to apprehend and arrest the appellant.

At the time of his arrest appellant was dressed in a faded blue shirt and trousers, and had on the blue tam cap introduced in evidence.

This witness did not notice a scar on the left side of appellant's face at the time of his arrest, but was unwilling to say that there was no scar.

After appellant's arrest, and in the presence of the prosecutrix appellant's shoes were removed, and there were holes in his socks.

Also after appellant's arrest he was identified by Sallie Perkins as the man she had seen running earlier in the afternoon.

McKinley Travis, a witness for the defense, testified that on the day he was arrested the appellant was at his house from morning until about 3:40 P.M.

Estelle Harrison, appellant's sister, testified that appellant left the house in which they both lived sometime during the morning, and did not return at any time during the day to change his clothes, or for any other purpose.

In his own behalf the appellant testified that he had never been in trouble of any kind prior to his arrest on the present charges.

He lived about two and a half blocks from O'Connor's store but on the day of his arrest he had been at McKinley Travis' house, along with several others, from morning until about 3:40 in the afternoon. He had then walked to Kelly Hill to pay a woman some money, and as he was returning from this errand he was arrested.

At this time he was wearing a light pair of trousers and a green navy shirt, also the tam or beret and white socks introduced in evidence. He did not have on khaki clothes and white belt when allegedly seen by Sallie Perkins, though he did have a pair of khaki pants and a white belt at his home.

Appellant denied he had a scar on the left side of his face on 13 May, and exhibited his face to the jury. He further testified that when he was first taken to the presence of the prosecutrix she looked at his face and stated he was not the man, but she walked around to his back and then stated that he was the man as she knew him by his hair cut.

Appellant denied he had ever seen the prosecutrix before his arrest, or that he had been in O'Connor's store to buy a pair of shoes the afternoon in question.

On cross examination appellant stated that the tam and socks received in evidence were his and that he was wearing them at the time of his arrest. He also stated that he wore a size 10 shoe.

Mr. Kay Strain, who was in charge of the personnel at the mill where appellant was employed and who has known appellant since 1940, testified to his good reputation.

Likewise a showing was made that if Mr. A. E. Kelly, and Mrs. E. M. Davis, of Brewton, Alabama, were present, they would testify that appellant's general reputation in Brewton, his former residence, was good.

In rebuttal the State recalled the prosecutrix who testified that when she first saw appellant after he was apprehended he was on the back seat of an automobile with another Negro man. She told the officers that the other man was not the one, but that appellant was the one who had attacked her.

Mr....