Curry v. State
| Decision Date | 07 May 1929 |
| Docket Number | 4 Div. 542. |
| Citation | 122 So. 303,23 Ala.App. 140 |
| Parties | CURRY v. STATE. |
| Court | Alabama Court of Appeals |
Appeal from Circuit Court, Dale County; J. S. Williams, Judge.
Cliff Curry was convicted of assault to ravish, and he appeals. Reversed and remanded.
Sollie & Sollie, of Ozark, for appellant.
Charlie C. McCall, Atty. Gen., for the State.
Section 9509 of the Code of 1923 is a statutory direction to the trial court respecting the matter and things therein named and must be substantially complied with. But it is the duty of an appellant to show by bill of exceptions or otherwise that the court had knowingly violated the section above cited. As in the instant case, there is no exception showing the omission of the court to say, after reading the written charges given at the request of defendant: "These are instructions given you by the court at the request of the defendant, and are correct statements of the law to be taken by you in connection with what has already been said to you." In the absence of some action on the part of appellant bringing the omission to the attention of the lower court and invoking a ruling thereon, this court will assume that the court complied with the statute or that it was waived by defendant.
Refused charges 1, 2, 3, 4, 8, and 9, being affirmative instructions to acquit the defendant, were properly refused. The evidence for the state, if believed beyond a reasonable doubt, was sufficient to go to the jury upon the question of the guilt vel non of the defendant. The facts in this case are not the same as in the Jones Case, 90 Ala. 628, 8 So. 383, 24 Am. St Rep. 850, and other cases cited in that opinion. The intent to rape is a condition of mind coupled with an effort by physical force to carry out the desire over the physical resistance of the victim. To justify a conviction, the evidence must be sufficient to show such acts and conduct of the accused as that there will be no reasonable doubt of his intention to gratify his lustful desires against the consent of the female and that the act would have been accomplished but for the physical resistance of the female or by some outside force which caused him to desist. Lewis v. State, 35 Ala. 380. Where there is physical force on the part of the man, in an attack on a woman, coupled with evidence tending to prove an intent to force an intercourse, and a physical resistance on the part of the woman or an outside interference, the whole question is one of fact for the jury. From these facts, the jury may conclude that the defendant is guilty of assault to rape, assault and battery, or that the defendant is not guilty of any charge.
We are of the opinion that the legal principles included in refused charges 5, 6, and 7, were fairly and substantially given in the general charge of the court, which fairly stated every phase of this case. There is a substantial difference between charges C and 11, held to be good in Brooks v. State, 185 Ala. 1, 64 So. 295, and refused charges 5, 6, and 7 in this case, in that the charges in the Brooks Case are not predicated upon a criminal act, but upon actions incident to almost every sexual relation.
The court cannot be put in error for refusing to permit the jury to make a mistrial; nor was it coercion of the jury by the court for the court to tell the jury that he would not entertain further messages from them that they could not agree. These things must be left to the discretion of the trial court, not to be reviewed except in cases of clear abuse.
In a case of this character, the age of the girl alleged to have been assaulted is descriptio personæ, and as such is relevant as evidence. Such evidence is not technically speaking res gestæ, but is admissible to be considered along with the other evidence of the case in explanation of the acts of the parties involved.
Questions by the solicitor calling for testimony tending to prove that the girl made complaint of the assault shortly after it occurred were properly allowed, and the answers to these questions were properly admitted in evidence. 11 Michie's Dig. 477, par. 34 (1).
It was also relevant and permissible to prove by the girl's father that...
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Cook v. State, 6 Div. 489
...to those developed at trial. Cross v. State, 68 Ala. 476 (1881); Williams v. State, 83 Ala. 68, 3 So. 743 (1888); Curry v. State, 23 Ala.App. 140, 122 So. 303 (1929). Here we have no indication that the comment referred to facts from another case or was designed to institute a comparison be......
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...observed on the ankle of the defendant were 'consistent with fingernail scratches.' Perry v. State, 87 Ala. 30, 6 So. 425; Curry v. State, 23 Ala.App. 140, 122 So. 303. Over objection of counsel for defendant, the State was permitted to ask the defendant's character witnesses on cross-exami......
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