Hale v. State

• Decision Date: 06 May 1955
• Citation: 2 McCanless 461,198 Tenn. 461,281 S.W.2d 51
• Parties: , 198 Tenn. 461 John Arthur HALE v. STATE of Tennessee.
• Court: Tennessee Supreme Court

Page 51

281 S.W.2d 51

2 McCanless 461, 198 Tenn. 461

John Arthur HALE v. STATE of Tennessee.

Supreme Court of Tennessee.

May 6, 1955.

Z. Alexander Looby, Nashville, H. T. Lockard, Memphis, for plaintiff.

Nat Tipton, Asst. Atty. Gen., for the State.

SWEPSTON, Justice.

The defendant was indicted, tried and convicted for an assault and battery upon a child under the age of 12 years with intent to carnally know her and the punishment fixed at death from which he appeals.

A brief statement of the facts follows:--The child was 8 years old at the time of the assault and the defendant who is a young negro, was 19 years of age, unmarried but the father of one child according to his own testimony. On the 17th day of October, 1953, the defendant and some other negroes were cutting sod in a field in the south part of Memphis near what is known as Non Connah bottom. The little girl on whom the assault and battery was committed and a little boy about the same age intended to have a picnic in this field a short distance down below the area of their homes about mid-day. After they had gone down into that area the defendant succeeded in luring the little girl away from her companion and from the observation of four other young boys who were playing in the vicinity, by his continued insistences that he was going to show her a turtle; he succeeded in having her follow him into some nearby tall grass and there committed the crime.

The child testified that after he succeeded in getting her out into the high weeds in a secluded place, he compelled her to remove her underwear, made her lie down on the ground and assaulted her three times and afterwards before he released her he compelled her to let him kiss her in a very lascivious manner. The little girl testified also, which was confirmed by the medical examination had very shortly thereafter, that her vagina was not penetrated but to the contrary her anus.

Shortly after the commission of this crime and on the same afternoon plaintiff left Memphis, went to Arkansas, and later to Detroit, where he was apprehended by the F. B. I. on a Federal warrant and brought back to Memphis.

The defendant's defense is that he did not molest the child in any way, that he was not away from the point of work long enough to have committed the act and that in fact the only time that he was away from work from early morning until all of the sod-cutters quit shortly after noon, was when he went in a car with another one of the negro workmen to get a soft drink.

There is no need to discuss the preponderance of the evidene because the proof is overwhelming to the effect that he was guilty as charged.

The 13th assignment of error complains of the overruling of his motion for a new trial in which it was alleged that there was no evidence on which the jury could find the defendant guilty of the offense charged in the indictment. It is said that the State's evidence showed only the commission of a crime against nature and that there was no evidence of an intent to have carnal knowledge of the little girl.

This insistence is based solely on the fact that the defendant did penetrate the anus and not the vagina. The defendant did not testify of this point at all. He simply denied having molested the child in any manner.

Under an indictment under this section of the Code, 10785, the guilty intent is the gravamen of the charge and not the consummation of the intent. In Carter v. State, 181 Tenn. 259, 264, 181 S.W.2d 137, 138, this Court said:

'The offense charged is not the actual commission of the crime, which might include different degrees or other offenses, but is a charge of an assault with a single intent to commit a specific offense. It is the intent with which the assault is committed that constitutes the offense. The intent only gives the assault its felonious character. The intent forms the gist of the offense, and where the intent constitutes the offense it must be proved. 1 Whar.Cr.Law, sec. 1279; (Jones v. State) 2 Swan 399.'

The fact that he did not accomplish his purpose is by no means determinative of whether or not he harbored the intent but is simply a fact to be taken along with any other evidence. In Brown v. State, 186 Tenn. 378, 382, 210 S.W.2d 670, 672, the conviction violating this same statute was sustained where the Court said:

'He pushed her down on one of the beds and thereupon did certain acts which conclusively disclosed an intention to then and there carnally know her. After a brief struggle she escaped without being harmed, went immediately to the drug store, then returned home and told her mother what had happened.'

In Davis v. State, 186 Tenn. 195, 198, 209 S.W.2d 7, the opinion in the last paragraph on that page, cites Commonwealth v. Shaw, 134 Mass. 221, where the child, when thrown on the floor by defendant fell on her hands and knees; it was held that the fact that the child was placed in such a position that penetration was impossible was no defense to a charge of assault with intent of carnally know her.

Now as to the evidence of intent in this case, we have in the first place, the fact that the defendant picked out as his victim a female when there was a little boy available at the same time, if his intention had involved only that of sodomy or a crime against nature; the proof showed also that there were four other boys playing in the same general area. Instead, the little girl testified that the colored man suggested that she and her playmate, Charles, split up and one go one way and one the other (R. 188). Again (R. 193), the child testified as follows:

'Q. Now, talk out plainly. What did he say to you at that time? A. He asked me if boys ever did anything to me.

'Q. What did you say? A. I said no, they were perfectly nice boys.

'Q. Did he ask you anything else? A. I said, 'I don't understand what you mean,' and he said, 'You know.' I said, 'I still don't understand,' and he said, 'Like * * *.'

'Q. Talk as loud as you can. A. He said 'Like pulling down your panties,' 'No, I don't like to do that and they never do talk about it.'

'Q. Did he say anything else to you? A. He told me that he'd like to do it, and I said--, well I became frightened and I was scared and he said he'd like to do it.

'Q. He said he's like to do it? A. Yes.

'Q. What did he say then to you? A. He asked me if I wanted to do it with him and I said 'No sir;' I said, 'mother might be looking for me,' that I had better go home.

'Q. What did he say when you told him you had better go home? A. He told me 'no I cannot go home and I can't----.

'Q. Did he tell you to do anything? A. Not right then.

'Q. All right. A. I began to get real frightened and I was scared, I was just so scared that I couldn't do nothing.

'Q. All right, then what happened? A. He told me to pull off my pants and I said 'no, that I wouldn't do it;' he told me to go on, if I didn't he was going to choke me.

'Q. Did you pull off your pants? A. Yes, sir, I was just scared as anything and I was going to do what he said.

'Q. Then what did he tell you to do after you pulled off your pants? A. He told me to lay down on the ground and I told him I didn't want to do that and he told me if I didn't he was going to choke me and I got scared----

'Q. Did you believe him when he told you that he was going to choke you? A. Yes sir, I was scared. You can't tell about other people--you don't know.

'Q. Did you lay down on the ground? A. Yes sir.

'Q. Then what did he do? A. Well, he unbuttoned his pants and took out what we call a ding-dong.

'Q. That is part of his person, is that right? A. Yes sir.

'Q. And then what did he do, Linda? A. He got on top of me and put it in me.

'Q. He put it inside your body? A. Yes.

'Q. Where? A. In my back.

'Q. Is that where you do what you call number two? A. Yes sir.

'Q. Where were your legs? What did he do with your legs? A. Well, he didn't do nothing right then. I put my legs down and he finally put them over his shoulders and he held them.'

Then the child testified that after he had abused her in the anus she said she had to go to the bathroom and he told her to go into the weeds, and then told her to hold up her dress. After making her submit to this sort of treatment three times altogether, they started to go out of the tall weeds when he insisted on her kissing him in the mouth and 'he wiggled his tongue around in my mouth some way.'

The above evidence taken with the fact that he had begotten a child on the person of another female at some previous time, and in the absence of any evidence of perverted sex habits, we think the jury was warranted in finding that the defendant committed the assault and battery on this child with the intent to have sexual intercourse with her, that is to have carnal knowledge of her but for some reason changed his mind to the extent that he committed an act on her that he could just as well have committed on a male person.

For further very clear authority to the effect that failure to accomplish the original purpose, or an abandonment of the original purpose, does not nullify the original guilty intent. See: McEwing v. State, 134 Tenn. 649, 653, et seq., esp. 656-657, 184 S.W. 688.

We, therefore, overrule assignment No. 13.

Assignments 11 and 12 complain of the refusal of defendant's special requests to the effect first, that the jury must find that the assault and battery were committed with the intent to have unlawful carnal knowledge and that it would not be enough to find that he had the intent to enter the rectum, and second, that the commission of an assault and battery for any other purpose was not punishable under the indictment in this case.

The Court charged the jury in the language of the statute, Code sec. 10785, under which the indictment was laid; also in the language of section 10781 relating to the punishment for rape; also the two lesser offenses of an attempt to commit a felony and an assault and battery, and later on the charge...