Brummitt v. State

• Decision Date: 19 April 1977
• Docket Number: 5 Div. 322
• Citation: 344 So.2d 1261
• Parties: Anthony Jerome BRUMMITT, alias Tony Brummitt, alias Willie Jackson v. STATE.
• Court: Alabama Court of Criminal Appeals

Page 1261

344 So.2d 1261

Anthony Jerome BRUMMITT, alias Tony Brummitt, alias Willie Jackson v. STATE.

5 Div. 322.

Court of Criminal Appeals of Alabama.

April 19, 1977.

W. Larry Ray, Opelika, for appellant.

William J. Baxley, Atty. Gen., and Michael L. Weathers, Asst. Atty. Gen., for the State.

SIMMONS, Retired Circuit Judge.

Appellant, an indigent at nisi prius and on this appeal, was indicted for assault with intent to rape, convicted therefor, with punishment fixed by the trial court at twenty years imprisonment.

It appears that at the time of the offense appellant, a black, was 17 years of age. The alleged victim, a white female, was 18 years of age. Essential details of the evidence in chief will follow. The trial court heard and denied defendant's motion to be tried as a youthful offender pursuant to Title 15, Section 266(1)--266(6), Code 1940 as amended. See Supplement, Vol. 5, pp. 162--3. We will not disturb the court's denial of the motion.

Since the alleged victim named in the indictment was a minor, we deem it unnecessary to give her name. We will refer to her as the prosecutrix.

The evidence goes into detail as to the prosecutrix's itinerary leading up to the res gestae of the alleged assault. We will omit many of the details. It is sufficient to state that the prosecutrix was at the home of her parents when two young men, both white, and neither of adult age, drove up and asked the prosecutrix to go swimming with them. One of the hosts was Jody Stringfellow, 16 years of age, and the other was David Brown. After swimming, they decided to look for a black girl, a friend of the prosecutrix. They drove to the neighborhood where this black friend, Brenda, was believed to live. While driving in the neighborhood looking for Brenda, they saw defendant crossing the street in front of them. This was approximately 4:30 or 5:00 P.M. David recognized appellant and they spoke to each other. Appellant was asked if he knew Brenda. He said he did. David then invited him to get in the car and show them where Brenda lived. The prosecutrix made no objection. As we stated, supra, appellant was 17 years of age. David then asked him if he wanted to smoke some 'dope', which he explained to mean marijuana. The prosecutrix in her evidence referred to the defendant as 'Tony'. We will also in this opinion use the name of Tony, meaning the defendant-appellant.

With Tony being permitted to take over the driving at some juncture of the ride, the parties continued the ride in search of marijuana and wine. Procurement of the latter was proposed at some juncture of the ride. Continuing their quest for the stimulants, they rode up to a house where several black youngsters were assembled. After inquiring for marijuana, one of the assembled blacks, Robert Summers, got into the car and the ride was resumed. Tony, over the protest of one or more of the occupants finally drove to an isolated spot on a dirt road where the car was stopped. The white boys alighted from the car leaving the victim in the middle between Tony and Robert Summers. At this stop and point the res gestae of the offense took place.

It appears from the evidence of the victim that the defendant, Tony, began his approach to get the prosecutrix to have intercourse with him. He used vile and vulgar language in this aggression. Robert Summers tried to protect the female against the approaches of defendant. Anyway, defendant, according to the state's evidence, pulled a knife and opened the blade. Summers testified that Tony told the prosecutrix 'if she didn't give him nothing, he was going to cut her'. It also appears from the state's evidence that Tony had stopped the car, removed the keys from the switch, and would not let anyone have them. He disregarded requests to go home. Tony, with his knife in his right hand, placed his right arm around the girl's shoulder and with his left hand unbuckled her jeans, put his hand under her underwear and touched her private parts. Not only did the girl start crying but while telling Tony to leave her alone, she attempted with both of her hands to pull his hand out of her underwear. One of the riders, Jody Stringfellow, testified that he told Tony to leave her alone. With his knife in hand, Tony threatened, in her presence, 'to mess up' Jody Stringfellow if he did not cooperate with him. At this point, according to the evidence, Tony told Jody Stringfellow he was going to mess him up if the prosecutrix would not 'do something' with appellant.

It also appears from the state's evidence that Tony cut one of Robert Summers' fingers when the latter tried to take the knife away from Tony.

Another witness, David Brown, testified that Tony took Jody Stringfellow by the shirt saying, 'Now, you better talk her into it, too, or I'll cut all three you little butots up'. The state's evidence further showed that Tony hit Jody on his nose with his fist, not hard enough to make it bleed, but enough to let Jody know where Tony stood.

We will not undertake to delineate all the physical and threatening aggressions of Tony during his efforts to intimidate the prosecutrix into yielding to his uninvited approaches and physical efforts to satisfy his sexual desires with the girl. We do state that the record is replete with his intimidations to force sexual intercourse. He never did succeed. The police arrived during the progress of Tony's intimidating efforts. This arrival broke up the assembly.

Defendant testified and denied these intimidating approaches. He admitted having a knife open in his possession. He claimed he used the...