Burleson v. State

• Decision Date: 12 June 1928
• Docket Number: 6 Div. 333
• Citation: 117 So. 500,22 Ala.App. 526
• Parties: BURLESON v. STATE.
• Court: Alabama Court of Appeals

117 So. 500

22 Ala.App. 526

BURLESON v. STATE.

6 Div. 333

Court of Appeals of Alabama

June 12, 1928

Rehearing Denied June 26, 1928

Appeal from Circuit Court, Walker County; Ernest Lacy, Judge.

Dewey Burleson was convicted of an offense, and he appeals. Affirmed.

J.D Acuff, of Jasper, for appellant.

Charlie C. McCall, Atty. Gen., and J.J. Curtis and J.M. Pennington all of Jasper, and Leo H. Pou, of Mobile, for the State.

RICE J.

Appellant was convicted of the offense of rape, and given a sentence to serve a term of ten years' imprisonment in the penitentiary.

The state's evidence tended to prove the following state of facts:

"Appellant, with whom was one Holliday and one Fowler while riding in appellant's automobile, overtook, late in the afternoon, one Robert I. McClure and his wife, Constance McClure, who were walking, on the public highway, at a point near Hamilton, in Marion county. The McClures, being invited to ride, got into appellant's automobile, and the party of five proceeded along the highway, in the general direction of Jasper, in Walker county. Congeniality reigned among the company, a number of stops were made, and on two occasions of these stops appellant procured whisky, which was consumed by the several members of the group. The portion of the whisky drunk by Mrs. McClure was forced down her throat by appellant, by means of his holding her nose and placing the whisky contained to her lips and pouring the whisky into her, so to speak. Some time after night had fallen, and when the party had reached a point on the highway near Eldridge in Walker county, Robert I. McClure was induced to leave the car temporarily by means of the pretext by appellant that a tire on the automobile had 'blown out,' or was punctured, and while on the ground near the car, the said Robert I. McClure was struck over the head by appellant, and dazed, and before he could recover himself his wife, Constance, was placed in the car by appellant, who rapidly drove her away from that point, against her will, and over the frantic protests of her helpless husband. Appellant, the said Holliday and Fowler being with him at the time, drove the car, containing Mrs. McClure, an unwilling, but rather drunk, passenger, off from the main highway and up a mountain side road to a place some distance from Eldridge, where he turned it around and stopped it. He proceeded at once to climb from the front seat, where he was driving, back over upon Mrs. McClure, who was riding upon the rear seat, the car being what is known as an Essex Coach. At this point both Holliday and Fowler betook themselves from the scene, and proceeded away from there, on foot, back down the mountain road up which they had just been driven by appellant--Holliday, upon leaving, remonstrating with appellant that what he was about to do 'was rape.'

"There, near the mountain crest, on the dark and lonely country road, this appellant, by sheer force and against her will, gratified his unholy lust upon the struggling body of the wife of Robert I. McClure, while the helpless husband frantically tried in the darkness of the highway, far below, to get first one and then another of the passing motorists to take him up and carry him in search of the captured Constance. Her rape complete, Constance McClure was brought back down the mountain by appellant, and ruthlessly put out on the roadside, in a condition either of unconsciousness or which quickly changed into unconsciousness, where, shortly thereafter, she was found, in the darkness, by her distracted husband. Appellant went on his way, unpursued save by the certain nemesis of an outraged law."

All this, and more, the evidence on behalf of the state, tended to prove, and the jury, it appears, believed its essential features.

The testimony on behalf of the defendant was in many respects in agreement with that on behalf of the state. The conflict was only in what may be considered the essential or vital particulars. Stated otherwise, his testimony tended to show that, while he did, so to speak, abduct Mrs. McClure from her husband, by quickly and rapidly driving his car, with her in it, away from the point on the highway where Robert I McClure was induced by his ruse...