Gordon v. State, 1 Div. 511.

Decision Date04 June 1946
Docket Number1 Div. 511.
Citation26 So.2d 419,32 Ala.App. 398
CourtAlabama Court of Appeals

W C. Taylor, of Mobile, for appellant.

Wm N. McQueen, Atty. Gen., and Bernard F. Sykes, Asst. Atty Gen., for the State.


In the consideration of this appeal, because of the unusual character of the case, all of the members of the court have carefully read the entire record; and, sitting en banc, have discussed the questions presented and have given them our attentive and careful consideration.

The facts adduced upon the trial below are too offensive to modesty, and too odious to allow their publication in our reports. We will therefore not discuss the sordid proof, nor need we deal specifically with the innumerable points of decision, or questions, presented.

The indictment charged the defendant with the offense of rape. To said indictment the defendant interposed his plea of not guilty, thus, the only issue involved upon the trial of this case was whether or not the defendant was guilty or innocent of the commission of the specific charge contained in the indictment, and none other. In other words, under the law the accused was called upon to answer the charge contained in the indictment only. A person charged with crime should be fully informed of the nature and cause of the accusation made against him before he is called to trial, and when so informed he cannot be called upon to answer any other charge in the same prosecution. The trial court specifically so held.

As to the nature of the evidence adduced upon the trial of this case, above referred to, we note that the experienced and able judge who tried the case entertained a similar view. In the opening remarks of the court in the oral charge to the jury, the court said: 'It has been very unpleasant, all of us realize, to have to sit through such a lot of revolting testimony.'

Upon the trial below the court properly defined rape, and in this connection, among other things, said:

'Rape has been defined by our Supreme Court as the unlawful carnal knowledge of a woman, by fear, threats, duress and against her will. Carnal knowledge, if there is a penetration of the private parts of a woman by a person's fingers or otherwise, is not rape. It must be by the sexual organ, and there must be sexual intercourse.

'The whole question in the case is whether, or not, this sexual intercourse was had by force, and against her consent, or whether it was had by her consent. There is testimony here as to whether, or not, this woman was drunk and so drunk she did not know what she was doing, etc. The law in that respect I will read to you, because it is briefly stated by the Supreme Court that is to say,

"If the woman is mentally unconscious from drink, or sleep, or from other cause in a state of stupefaction, 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."

In the case of McQuirk v. State, 84 Ala. 435, 4 So. 775, 5 Am.St.Rep. 381, the Supreme Court held the refusal of the following written charge was reversible error. The charge was as follows: 4. 'If the jury believe, from the evidence that the conduct of the prosecutrix was such toward defendant, at the time of the alleged rape, as to create in the mind of the defendant the honest and reasonable belief that she had consented, or was willing for defendant to have connection with her, they must acquit the defendant.'

In discussing said charge, the court (through the late eminent Justice Somerville) said: 'The fourth charge requested by the defendant should also have been given. The consent given by the prosecutrix may have been implied as well as express, and the defendant would be justified in assuming the existence of such consent if the conduct of the prosecutrix towards him at the time of the occurrence was of such a nature as to create in his mind the honest and reasonable belief that she had consented by yielding her will freely to the commission of the act. Any resistance on the woman's part falling short of this measure would be insufficient to overcome the implication of consent.'

As stated by the trial judge, necessary to a conviction for the crime of rape, it is essential that the evidence must show, (1) sexual intercourse between the man and woman involved, and (2) that such intercourse was accomplished by force, etc.

As to the sexual intercourse in the case at bar, the only testimony in the entire case on this question was that of the defendant, and he testified, without dispute or conflict, that the act was accomplished with the full consent of the woman and that she was not only willing, but was anxious, insistent, and co-operative in every way, and that the act was accomplished by the parties in a standing position.

The defendant further testified that at or about the time he and the woman were about to finish an aged ex-policeman rode up upon a bicycle and stopped, and as he and the woman came up from the bushes, he conversed with them for several minutes, and that the woman became alarmed and frightened thinking the old gentleman was an officer of the law, but was appeased and satisfied when she was informed differently. The woman claimed, and so testified, she 'lost her recollection' (something hit her) and that she did not remember seeing the old gentleman at any time, that she only saw a negro, and she further testified so far as she knew the defendant had never had intercourse with her, etc.

It is conclusive from the evidence that the principals, the defendant and the alleged injured party, were total strangers prior to the day of the alleged act complained of. Throughout the whole evidence it clearly appears that the woman in question entered into the unholy escapade voluntarily, and of her own free will and accord, it appears that the intoxicating liquor was procured upon her own request and that she drank therefrom, too well but not wisely, and at no time during their nearly all day unholy association did the defendant urge her, persuade her or try to force her in any manner. We will go into all that no further.

The aged ex-policeman was a Mr. A. J. Goodwin, and was introduced as a witness by the State, and was unquestionably a disinterested witness. He testified, among other things, that he was 76 years of age and on the day in question he was riding his bicycle for exercise in that vicinity and rode up to where...

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1 cases
  • Com. v. Williams
    • United States
    • Pennsylvania Superior Court
    • 5 Enero 1982
    ...to the rape and involuntary deviate sexual intercourse charge. Defendant relies on the obscure Alabama case of Gordon v. State, 32 Ala.App. 398, 26 So.2d 419 (1946) for this proposition. The defendant requested this charge and the court below declined to so instruct the jury. In so refusing......

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