Clark v. State, 8 Div. 946.

• Decision Date: 04 April 1940
• Docket Number: 8 Div. 946.
• Citation: 195 So. 260,239 Ala. 380
• Parties: CLARK v. STATE.
• Court: Alabama Supreme Court

195 So. 260

239 Ala. 380

CLARK v. STATE.

8 Div. 946.

Supreme Court of Alabama

April 4, 1940

Appeal from Circuit Court, Limestone County; A. A. Griffith, Judge.

William Clark, alias Harbert Clark, was convicted of rape, and he appeals.

Affirmed.

G. W Chamlee, of Chattanooga, Tenn., for appellant.

Thos S. Lawson, Atty. Gen., and Wm. H. Loeb, Asst. Atty. Gen., for the State.

KNIGHT Justice.

The appellant, William Clark, was indicted by a Grand Jury of Limestone County, impaneled at the fall term of the circuit court of said county, for the offense of rape.

The judgment entry shows that on November 3, 1938, the defendant was arraigned upon said indictment, he being then personally present in open court and attended by his attorneys, and upon said arraignment pleaded "not guilty." This plea of "not guilty" was duly entered upon the minutes of the court in said cause. The case was then set for trial on November 10, 1938, and on that day, November 10, 1938, the defendant was put on trial, and was convicted by the trial jury of rape, as charged in the indictment, and his punishment fixed by the jury at death.

The record proper shows due organization of the court, indictment in due form of law, and proper arraignment of the defendant upon the indictment and his plea of not guilty thereto proper order setting the case for trial on November 10, 1938, and a proper order for a special venire to be composed of 75 qualified jurors to try the case. With reference to all these matters the law was fully complied with, as appears from the judgment entry. No errors appear upon the record proper.

Section 5407 of the Code of Alabama provides: "Any person who is guilty of the crime of rape must, on conviction, be punished, at the discretion of the jury, by death or imprisonment in the penitentiary for not less than ten years."

The crime being one that the jury might, in its discretion, punish by death, it becomes the duty of the court to appoint attorneys to defend the accused, he not being able to employ counsel. This duty the court observed in this case.

It appears from the record that the court appointed by name attorneys of the highest standing at the bar of Limestone County to appear for and represent the defendant in said case, and the record shows that the attorneys so appointed represented the defendant throughout the trial.

It appears from the record that on November 3, 1938, defendant's attorneys filed a motion, duly sworn to by the defendant, that the cause "be transferred to the Juvenile Court to be there dealt with according to law and for grounds of said motion says as follows: 1. The defendant is charged with rape, and the defendant is only 16 years of age, he having been born on the 24th day of September, 1922." On motion, the court made and entered the following order. "The defendant files motion in writing showing defendant to be a minor over 16 and under 18 years of age, praying for an order transferring the case to the Juvenile Court; the court does not deem it to be in the interest of justice and of the public welfare to transfer the case to the Juvenile Court, and the same being considered by the court, it is ordered and adjudged by the court that the said motion is overruled." In this there was no error. General Acts of Legislature 1923, p. 296.

In view of the insistence of defendant's present counsel, who came into the case after the conviction and sentence of the defendant, that the evidence was insufficient upon which to convict the defendant of rape, we deem it not amiss to set out, rather at length, the substance of the state's evidence, and all of the defendant's evidence.

The first witness called and examined by the state was Leacie Clem, the woman alleged to have been raped, and she testified in substance: That she knew the defendant, William Clark, that for about two years he lived on her father-in-law's place, and that she saw him frequently, and knew him when she saw him; that on the day the occurrence took place she had been down to her father-in-law's house; that when she returned to her house, "about a quarter of nine, she went into the kitchen, and then on through the house, and came back to the bathroom; that after being in the bathroom about a minute she noticed the door was pulled out more than usual," and that she pulled the door farther out, and saw the defendant behind the door. That she saw it was a colored man, but did not know who it was at that time; that she screamed and ran towards her bedroom, and the defendant ran after her and caught her on the back and threw her down, choking her. That she struggled a few minutes, and he threw her down on the floor, and that she asked him not to kill her, but he kept choking her, and she became unconscious. That when she regained consciousness, the defendant was on top of her; that he had torn her clothes off and was in the act of raping her; that he did this while she was unconscious, and when she "came to" he was in the act of having intercourse with her; that she screamed and tried to get away, and he started to choking her again, and that she told him to take anything in the house that he wanted but "just not to kill me," and "that is when he drug me by the hair of the head and I was close to the dresser and he pulled me up to the dresser and put nose drops and powder in my eyes took his fingers and rubbed it in my eyes and left me and locked both doors to the room I was in, and when I woke up from my unconsciousness I knew that his privates had penetrated my privates." That she recognized defendant before she became unconscious. She further testified: That when "she came to herself" she was trying to get her eyes open so she could see, that she then ran out of the house to the home of Mrs. Norton, and gave the alarm. That the defendant took her husband's overcoat and leather jacket and the watch she had on at the trial, and he also took a fountain pen. She further testified that the defendant made scars on her neck, her legs, on both knees, elbows and on her head, and that the scars were still there. She further testified that she got the watch back from the officers.

The arresting officer, Johnson, testified that he got the watch which Mrs. Clem testified the defendant had taken from her, from the defendant, and after predicate had been laid, this witness testified that the defendant told him he had not planned the crime, that the reason he did it, he "reckoned the devil crossed his mind."

John Clem, a witness for the state, testified that he went to the house of Mrs. Clem within a few minutes after the alarm was given, and he found "the torn clothes on the floor of the bedroom where this trouble occurred."

There was other testimony on the part of the state, tending to show the commission of the offense charged, and also tending to connect the defendant with the crime.

The only testimony offered on behalf of the defendant was his own evidence, and we will here set it out.

"My name is William Clark, and I lived with my mother Hester Clark on Charley Anderson's place, and I was sixteen years old on the 24th day of September, 1938, and I know where Mr. Gene Clem lives, and also know Mrs. Lecie Clem. I went to their home and got there between 8 and 9 o'clock having left my sister's about five miles away and I was looking for money and I went in the house through the front door, and went on to a chest and went to looking in there for money. I went into the living room and when I left there I come on into the bathroom. There was nobody there that I know of and I did not see or hear anybody when I entered the home, but after I got there Mrs. Lecie Clem came in, and I saw her when she was coming and she came through the back door, and I was behind the door in the bathroom, I went in there when I heard her coming and I have just heard what Mrs. Clem said. I did not rape or ravish Mrs. Clem.

"On cross examination by the State, the witness testified as follows:

"I was in the house when I seen her coming, and I had gone in there to steal money and she came in the back door, and I was in her living room near the front door and she was coming in the back door and instead of going out the door I went to the bathroom and hid behind the door in the bathroom, and when she came in and saw me she ran and screamed and I followed her and caught her before she got to the bedroom and choked her from the back.

"Q. What hand did you use? A. Used this one.

"Q. What did you do with the other hand? A. I just had her around the waist with this other one.

"Q. Hold that hand up so the jury can see, the one that you choked her with. You choked her until she fell? A. Yes, sir. And she become unconscious and when she fell I turned her loose, and I did not put powder in her eyes, it was bacca crumbs, I did not put snuff in her eyes, just put tobacco crumbs, and this was after I had choked her, and I did not take her under-clothes off of her, and did not leave them on the floor, but I did choke her and when she fell I throwed bacco crubs in her eyes and I locked the door and come on back and got her watch and rifled the house. I got her clothes and when the officers arrested me the clothes were at this other fellow's house. I had the razor at the time I was

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