Burton v. State

• Decision Date: 13 May 1913
• Parties: BURTON v. STATE.
• Court: Alabama Court of Appeals

62 So. 394

8 Ala.App. 295

BURTON v. STATE.

Court of Appeals of Alabama

May 13, 1913

Rehearing Denied June 6, 1913

Appeal from Circuit Court, Tallapoosa County; S.L. Brewer, Judge.

Garfield Burton was convicted of "attempt to commit an assault with intent to rape," and appeals. Affirmed.

James W. Strother, of Dadeville, for appellant.

R.C. Brickell, Atty. Gen., and W.L. Martin Asst. Atty. Gen., for the State.

THOMAS J.

The defendant was indicted for an assault with the intent to rape, which is made a felony by section 6309 of the Code punishable by imprisonment in the penitentiary for not less than two years. He was convicted of an "attempt to commit an assault with intent to rape," and sentenced by the court, as for a misdemeanor under section 7622 of the Code, to hard labor for the county for a term of six months. The defendant moved in arrest of judgment that the verdict of the jury, finding him guilty of an "attempt to commit an assault with intent to rape," was void, in that there is no such crime known to the law. The motion was overruled. In this the court committed no error. White v. State, 107 Ala. 132, 18 So. 226. The verdict and judgment that the defendant was guilty of an "attempt to commit an assault with intent to rape" can only mean that the defendant was guilty of an "attempt to commit rape," which attempt did not proceed far enough to amount to an assault. Lewis v. State, 35 Ala. 380; Prince v State, 35 Ala. 368.

An "attempt to commit rape" or any other crime was a misdemeanor at common law. 3 Am. & Eng.Ency.Law, 251; 23 Am. & Eng.Ency.Law, 867; Greer v. State, 50 Ind. 267, 19 Am.Rep. 709; State v. Pickett, 11 Nev. 255, 21 Am.Rep. 754. And it is still recognized as an offense under the laws of this state (Hutto v State, 169 Ala. 19, 53 So. 809); section 7622 of the Code providing a punishment of six months' hard labor or imprisonment for all commonlaw misdemeanors, which, as observed, was the punishment imposed in this case. We have also the statutory offense of an "assault with the intent to commit rape," created and made a felony by section 6309 of the Code, the acts essential to constitute which were embraced in the common-law misdemeanor of an attempt to commit rape.

The word "attempt" may be generally defined as an intent to do a thing, coupled with an overt act in that direction--an endeavor to do it--which falls short of the accomplishment of the thing intended. 1 Words and Phrases, p. 622; Jackson v. State, 91 Ala. 56, 8 So. 773, 24 Am.St.Rep. 860. If the attempt be one to commit rape, and proceeds to such an extent as to amount to an assault on the victim, the offense becomes a felony under the statute cited; but if the "attempt" stops short of an assault it remains a misdemeanor as at common law. An assault is usually defined as an "attempt or offer, with force and violence, to do a corporal hurt to another, whether from malice or wantonness, with such circumstances as denote at the time an intention to do it, coupled with present ability to carry such intention into effect." 3 Cyc. 1020; Gray v. State, 63 Ala. 66.

To sustain a conviction for a simple assault, the evidence must show a present ability on the part of the defendant to carry the unlawful attempt and intention into execution ( Chapman v. State, 78 Ala. 466, 56 Am.Rep. 42; Gray v. State, 63 Ala. 66); but a conviction for an attempt to rape may be sustained, even though the evidence does not show such present ability, provided it does show such an apparent ability to inflict the injury as to cause the person against whom it is directed reasonably to fear the injury, unless she or he retreat to secure her or his safety. Chapman v. State, 78 Ala. 466, 56 Am.Rep. 42; Kelly v. State, 1 Ala.App. 135, 56 So. 15; Lewis v. State, 35 Ala. 380; 3 Cyc. 1025.

The evidence for the state in this case tended to show that the defendant, while in a buggy driving along a country road, at or near a creek or branch, met the prosecutrix, a girl about 15 years old, walking alone, and suddenly accosted her, telling her to stop and get in the buggy with him. Upon her refusal he said, "By ______, I will show you;" whereupon, before he alighted from the buggy, she ran as rapidly as she could down the road toward the house of the nearest neighbor, which was a considerable distance away, screaming as she went, and being followed by defendant, who ran after her, some distance (it does not definitely appear how far) behind, for about 100 yards, then abandoned the pursuit, without ever touching her. Her screams were heard by a neighbor, who did not find out the trouble until prosecutrix reached him, and who never saw defendant while he pursued her. The evidence further shows that defendant fled from that section before he was arrested.

Formerly in this state it was a felony, punishable by death, for a slave to "attempt to commit rape on a white woman." In the construction of this statute, in the case of Lewis v State, supra, wherein the facts were identical in substance and character with those here, Judge Stone, speaking for the court, said: "An attempt to commit a rape *** may be complete, *** and yet no assault be actually committed. *** We are unwilling to lay down a rule, applicable to all cases, for determining when attempts have proceeded so far as to be within the punitive provisions of the law. Much must depend on the nature of the act attempted. We hold that if the defendant slave actually intended and attempted carnally to know the prosecutrix by violence and against her consent, and prosecuted his purpose so far as to put her in terror and render flight necessary to escape from his wicked attempt, then he was guilty of an attempt to commit a rape, within the meaning of the statute. To justify his conviction, however, the jury must be satisfied, beyond a reasonable doubt, that such was his purpose, and that his attempt had this extent. An indecent advance or importunity, however revolting, would not constitute the offense. *** We deem...