Fondren v. State

• Decision Date: 31 May 1965
• Docket Number: No. 43471,43471
• Citation: 175 So.2d 628,253 Miss. 241
• Parties: Thomas FONDREN, Alias Tommy Taylor, v. STATE of Mississippi.
• Court: Mississippi Supreme Court

Page 628

175 So.2d 628

253 Miss. 241

Thomas FONDREN, Alias Tommy Taylor, v. STATE of Mississippi.

No. 43471.

Supreme Court of Mississippi.

May 31, 1965.

Ethridge & Grisham, Oxford, for appellant.

Joe T. Patterson, Atty. Gen., by G. Garland Lyell, Jr., Asst. Atty. Gen., Jackson, for appellee.

RODGERS, Justice:

Appellant was indicted, tried and convicted in the Circuit Court of Lafayette County, Mississippi, for the crime of burglary with intent to rape, and was sentenced to serve a term of eleven years in the State Penitentiary. From this conviction, he has appealed to this Court. The indictment was brought under Mississippi Code Annotated section 2036 (1956).

The facts testified to are as follows: On April 13, 1964, Miss Marilyn Stephens of Oxford, Mississippi, who lived with her mother and father, and was a student at the University of Mississippi, arrived home about 3 P.M. She was alone, her parents being at work. She got a glass of water, and walked through the house. Looking out of her bedroom window, she saw a young Negro man outside, looking in. She attempted to telephone for help, and on hearing the doorbell, she discovered that he had entered the house. When she inquired what he wanted, he said 'Do you know this man?' She told him to 'get out', he came toward her, and she threw the water glass at him. He grabbed her by the shoulders, and around the body, she screamed and resisted. He told her he had a gun. She continued to scream and resist, and he ran out of the house. She again attempted to telephone for help, and while she was talking to her mother, he returned and attacked her again. During the scuffle, she told him the police were coming, and he left, running toward the University. She saw her assailant three times and had an opportunity to observe his physical appearance and his clothing. Other witnesses testified that about the time of this occurrence, a young Negro man was seen by them running across the street, and on the sidewalk in front of prosecutrix' home. They identified defendant as being the person seen by them.

After the Negro left her home, Miss Stephens ran to the home of a neighbor, where she stayed until her mother arrived a few minutes later. She was very upset but related what had happened, describing her assailant to the neighbors and her mother. She also described him to a Mr. Burrow, a policeman. Later in the afternoon, the police brought a number of Negro boys to her front yard for the purpose of identification, but after viewing them carefully, she failed to find her assailant in the group. She told her parents the following day that she was positive that she had seen the man previously but could not remember where. During the investigation, the police went to the Ole Miss Drive-Inn where the defendant worked, and talked to the owner. They discovered that the accused had assumed two names. The officers asked the defendant to go to town with them and he said 'All right.' He got into the car with the police and went with them. En route to town the defendant told the officers where he had been on the day the crime is alleged to have been committed. He was asked about the clothes he had on the day before and the day of the attack. He told the officers where the clothes were, and after the officers stopped in front of the police station, they went with the accused to his room. The officers obtained a coat there, belonging to Clyde Berry, and a hat, but the articles of clothing described by the defendant were not in his apartment. The officers left the defendant's room and went to Charley Fox's house where the defendant's shirt was being washed in a washing machine. The officers obtained the shirt, and a green pair of pants belonging to Andrew Burch. The officers and defendant then returned to the police station. The accused was requested to put on the shirt and coat. The prosecutrix was brought into the room, and the accused was asked to repeat the words 'Do you know this man?' in the presence of the prosecutrix. Miss Stephens then said to the officers: 'If it is not him, it is his twin brother.' When prosecutrix identified the defendant during the trial, she said she thought what she said to the officers as to the identification was sufficient.

The defense in this case is an alibi. The defendant testified as to his whereabouts at the time the crime was committed. He was corroborated by other witnesses. The testimony showed that the accused lived in an apartment in the City of Oxford with four other boys. He worked at the Ole Miss Drive-Inn, usually at night, where he waited upon cars. He denied that he knew Miss Stephens, or where she lived, although he admitted that his mother had worked for a neighbor of Miss Stephens for approximately twelve years. He denied he attacked the prosecuting witness.

The witnesses for the defendant testified that at the time the alleged crime was said to have been committed that the defendant was with them at John Wesley Mitchell's home, and that they were looking at a television program.

Miss Barbara J. Hopson, an instructor in the Department of Health and Physical Education at the University of Mississippi, testified that she was passing a place, admitted to be the home of the prosecutrix, on April 13, 1964, between three and four o'clock (about the time of the alleged assault) and that she saw a young Negro man run out of a house, across a lawn and into the street, directly in front of her. She was positive that the man she saw was not the defendant.

At the conclusion of the evidence, the defendant requested the court to direct a verdict of acquittal. This motion was overruled and the case was submitted to the jury. The jury returned a verdict of guilty. Whereupon, defendant was sentenced, and a judgment was entered accordingly.

I

The first point complained of by appellant is that the proof does not show that the defendant broke into and entered the dwelling in the manner contemplated by Mississippi Code Annotated section 2036 (1956). The testimony shows that the front door of prosecutrix's house was open but that the screen door was closed and latched. This section requires that the breaking and entering be 'either by forcibly bursting or breaking the wall, or an outer door, window or shutter, of a window of such house, or the lock or bolt of such door, or the fastening of such window or shutter, or by breaking in in any other manner. * * *' (Emphasis supplied.)

The breaking may be established by proof of the slightest use of force in entering. 'By breaking is meant any act of force, regardless of how slight, necessary to be used in entering the building--the turning of a knob, a slight push to further open the door, the raising of a latch--these and like acts are sufficient.' Gross v. State, 191 Miss. 383, 2 So.2d 818 (1941). See also Nichols v. State, 207 Miss. 291, 42 So.2d 201 (1949).

In 12 C.J.S. Burglary section 3 (1938) at 670, it is said:

'There is a sufficient breaking at common law, and a 'forcible breaking' within the meaning of a statute, where a person enters by unlocking or unlatching a door, or by lifting a hook with which a door is fastened, or even by pushing open a door which is shut, but neither locked nor latched, or a window, transom or trapdoor which is entirely closed, although not fastened, but held in place by its weight only, or by pulley weights, and in many other cases where any degree of force is used.'

We see no merit in this contention.

II

The next point claimed by appellant is that there was no proof to show the intruder intended to commit rape, as charged in the indictment.

As hereinbefore shown, the defendant had served this young lady at the Ole Miss Drive-Inn on numerous occasions, or a number of occasions. He was seen by her looking in the window, and when she saw him, and he realized it, he jumped away from the window. Then he entered the front door while she was trying to telephone, opening the screen door and coming in, ringing the bell, and when she came into the living room, he asked her 'Do you know this man?' When she hollered to him to get out and threw a glass at him, he grabbed her arms and put his arms around her body, saying that he had a gun. Then when she screamed, he ran. He returned immediately after that and grabbed her around the body again, and did not leave until she told him that the police were coming.

Appellant argues that there was not sufficient evidence to establish an intent to rape, and relies on cases of attempted rape decided by this Court, such as Tremaine v. State, 245 Miss. 512, 148 So.2d 517 (1963); Pew v. State, 172 Miss. 885, 161 So. 678 (1935); Spurlock v. State, 158 Miss. 280, 130 So. 155 (1930); Green v. State, 67 Miss. 356, 7 So. 326 (1890). All of the cases cited to sustain the appellant's view were cases where the defendant was charged with an actual attempt to forcibly ravish. The law requires proof of all elements of the crime of attempted rape. In the instant case, there was no consent to the entry of appellant; he had no business there; he was not invited in the house; he opened the closed door and entered without the knowledge, consent or permission of any person. Under this statute, Mississippi Code Annotated section 2036 (1956), breaking and entering with intent to commit a crime constitutes the offense under that section. Under Section 2036 of the Code, supra, the following elements are essential of the crime: (1) the breaking and entering a dwelling house of another in which, at the time, some human being shall be present; and (2) such breaking must be with intent to commit a crime therein. No question is raised as to the first element of the charge. The second, or the intent to commit some crime therein, is simply an element of the crime of burglary. It is not necessary that all of the elements of the crime of assault with intent to rape be proven. The intent, however, to commit a crime must be alleged and proved. Taylor v....