Davis v. State

• Decision Date: 07 April 1964
• Docket Number: 1 Div. 937
• Citation: 42 Ala.App. 374,165 So.2d 918
• Parties: Robert Lee DAVIS v. STATE.
• Court: Alabama Court of Appeals

Page 918

165 So.2d 918

42 Ala.App. 374

Robert Lee DAVIS v. STATE.

1 Div. 937.

Court of Appeals of Alabama.

April 7, 1964.

Rehearing Denied April 28, 1964.

Thos. M. Haas, Mobile, for appellant.

Richmond M. Flowers, Atty. Gen., and Owen Bridges, Asst. Atty. Gen., for the State.

CATES, Judge.

First degree burglary (intent to ravish): ten years sentence--minimum. The appellant is a Negro; the prosecutrix is not.

The prosecutrix testified that (at the time here pertinent) she was spending the night alone at home:

'A Well, around 3:00 or 4:00 o'clock I woke up with a colored man in bed with me.

'Q What caused you to awake?

'A Because he was kissing me.

'Q What did you do?

'A I began talking to him and asked him who he was, and he said, 'Joe,' and I said, 'Who is Joe?' And he said, 'You know Joe.'

'Q What else, if anything, was said?

'A I said: 'Let's get up and I will make some coffee.' And he said that he didn't want any coffee, and I said: 'Turn the light on,' and he said, 'I don't want you to see my face.'

* * *

* * *

'Q During that period of time how close did this individual who was there get to you?

* * *

* * *

'A Well, you know, I could feel on my legs--I had on my shortie pajamas and my step-ins and all, and he didn't get them off, and that is all the close he come.'

About a month later, July 24, 1962, she got a phone call. Her evidence continues:

'He called, and he said, 'You don't know who you are talking to?' And I said, 'No, I don't.' He said, 'Don't you remember me coming to your house?' and I said, 'No, I don't.' He said, 'Don't you remember me coming to your house in June?' I said, 'No, I don't.' I said, 'Who was with you?' He said, 'I was by myself.' I said, 'Who was with me?' He said, 'You were by yourself,' and he said, 'I want you to meet me.' I said, 'Where do you want me to meet you?' He first said, 'Up at the Prescription Drug Store.' And he said, 'You will know me if you see me,' and I said, 'No, I wouldn't,' and he just kept talking and wanted me to--he said, 'Well, I tell you, you meet me at the Post Office,' and he told me how he dressed, and said, 'I'll be in the car.' And I told him how I was dressed, and he said he would remember me. So I called the police then.'

On cross, counsel for the defendant brought up a pre-trial interview he had had with her. Part of this reads:

'Q And do you recall me asking you: 'Up until that time you weren't frightened?' and you said: 'No, sir; not particularly.' Do you remember that?

'A Well, that is when he first woke me up that I felt of his hair.

'Q And then going on to what you told me, Mrs. T., didn't you then say to him: 'Get up and turn the light on so I can see your face.'?

'A Yes, sir.

'Q To which he replied: 'Lady, you don't want to see my face.'

'A Yes, sir.

'Q And, after some conversation with him, you walked to the front door ahead of him?

'A Yes; and turned on the light.

'Q And he left out the front door?

'A Yes.

'Q And before leaving he said: 'Can I call you one day?'

'A Yes, sir.

'Q To which you replied: 'Yes; you can call.'?

'A Until I got him on the outside.

'Q And then you latched the screen door and said, 'Don't you call me.'?

'A 'Don't you call me.'

'Q To which the defendant answered: 'I have plenty of money.'?

'A Yes.

'Q And 'You wouldn't want for anything?'

'A Yes.

'Q And then went around the side of the house, walking, and put the screen back in the window?

'A Yes.

'Q And walked back around the house and asked you not to call the police to which you said you wouldn't?

'A He told me I had better not call the police.

'Q What you told me was that he asked you not to call the police. And then he walked down the street, I believe you told me?

'A I don't know which way he went.

'Q He did walk away, didn't he?

'A As far as I know, he did.

'Q And then you sat down and cried for a while?

'A Yes.

'Q And then you called your niece, who was over at this girl's house, that you all had been with earlier in the evening?

'A Yes, sir.

'Q Apparently they had gone there from the V. F. W. Club. Is that right?

'THE WITNESS: Sir?

'MR. HAAS: Apparently your niece had gone from the V. F. W. Club to the other lady's house.

'A Yes, sir.'

Under Pumphrey v. State, 156 Ala. 103, 47 So. 156, Denson, J., after criticising the breadth of language used by Manning, J., in McNair v. State, 53 Ala. 453, went on to say:

'* * * In the instant case, if the accused, * * * under the excitement of lust and with the intention of gratifying it by force, entered the bedroom of Mrs. Crimm, * * * about 10 o'clock in the night, and with such intention got upon her person, on the bed in which she was sleeping, though he abandoned his design upon her springing from the bed and opening the door, we apprehend that it could not be said, as a matter of law, that he was not guilty of an assault with intent to ravish.

'There is nothing in the evidence to indicate that Mrs. Crimm was not virtuous, or that she had ever had even a conversation with the accused; so that any idea or expectation of permissive intercourse could not have been entertained by the defendant at any time. * * *'

We note dictum of Somerville, J., in McQuirk v. State, 84 Ala. 435, 4 So. 775:

'It is true that the element of force need not be actual, but may be constructive or implied. If the woman is mentally unconscious from * * * sleep, * * * so that the act of the unlawful carnal knowledge on the part of the man was committed without her conscious and voluntary permission, the idea of force is necessarily involved in the wrongful act itself--the act of penetration. But even in cases of this kind the intent to use force, if necessary to accomplish the offense, is essential to criminality. 1 Whart.Crim.Law, (9th Ed.) § 550.'

Pumphrey v. State, supra, alluded to 'social customs, founded on race differences.' We consider that--since our statutes do not make (and constitutionally cannot make) diversity of color an element of the charge--Denson, J., used the circumstance as an illustration of a factor which the jury might have borne in mind. Cf. Luker v. State, 39 Ala.App. 548, 105 So.2d 834 (white defendant convicted of rape on negro girl of 14).

In McGee v. State, 36 Ala.App. 276, 55 So.2d 223, Carr, P. J., gave the facts in part thus:

'* * * he drew a pocket knife and demanded that the prosecutrix remove her clothing. When she refused, he forcibly removed her shoes, socks, jeans, and bloomers, leaving her clad only in a blouse and coat. The accused threw the girl down on the ground and unbuttoned his trousers, exposing his private parts. At this time the girl told the appellant that she had to urinate and asked to be permitted to step aside for this purpose. The permission was granted with the command that she return forthwith.

'The prosecutrix did not return, but instead ran to the residence where the beer had been secured.

'The officers found the girl's pocketbook in possession of the appellant when he was arrested later the same night. They also discovered her clothing at the place of the claimed assault.'

The opinion continues:

'On the basis of this evidence we are urged to hold that in respect to the charge of assault with intent to rape the defendant was due the general affirmative charge.

'In approaching this review we are required to take the evidence in its most favorable light for the prosecution. Jones v. State, 33 Ala.App. 451, 34 So.2d 483; Womack v. State, 34 Ala.App. 487, 41 So.2d 429; Maxwell v. State, 34 Ala.App. 653, 43 So.2d 323.

'The rule by which we are guided is stated in Samuels v. State, 34 Ala.App. 13, 36 So.2d 561, 562: 'On a charge of assault with intent to commit rape, the evidence, to be sufficient to justify the conviction, must show such acts and conduct on the part of the accused as would leave no reasonable doubt of his intention to gratify his lustful desire against the consent of the female and notwithstanding resistance on her part.' See also, Wilson v. State, 22 Ala.App. 554, 117 So. 615; Pumphrey v. State, 156 Ala. 103, 47 So. 156.

'We do not think that it is necessary for us to analyze the evidence to illustrate our view that a jury question was presented on the question of instant concern.'

Why was the house broken and entered? Why was a man in bed with the prosecutrix?

The breaking and entering would support an inference that the intruder was not invited in. Upon an inference of unlawful entry, it is not too fanciful if the jury, in effect, says that a man getting in bed with a sleeping woman and kissing her had lubricous longings to possess her. And though he does not wake her, yet by his very stealth does he not betray an awareness of not being wanted?

Surely, if mere presence (in premises broken and entered) can furnish support for an inference to steal (Behel v. State, 40 Ala.App. 689, 122 So.2d 537), then all the more should it be rationally inferable that the defendant's conduct evinced a design to force himself upon the sleeping woman. Dormancy certainly cannot confer consent nor ratify. McQuirk v. State, supra.

Moreover, in weighing evidence toward intent to ravish, the jury must have before it more than a mere balancing of probabilities. The State must convince the jury from the evidence beyond a reasonable doubt.

'Because intent is an indispensable part of the crime, the defendant also is entitled, upon written request, to have the trial judge charge the jury that the State must prove intent (to steal or commit a felony) beyond a reasonable doubt. Code 1940, T. 7, § 273; Crane v. State, 111 Ala. 45, 20 So. 590 (re: refused charge 2); Lester v. State, Ala. [631,] 121 So.2d 110 (burden of proof never shifts). The so-called need for the defendant's explaining his presence (in the circumstances posited) is merely a statement of (a) the fact of his presence being sufficient to let the case go to the jury, and (b) a warning that the risk of non-persuasion hangs over his head.' Behel v. State, supra, 40 Ala.App. at p. 690, 122 So.2d at p. 539.

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