Hamilton v. State

• Decision Date: 21 December 1965
• Docket Number: 6 Div. 925
• Citation: 186 So.2d 108,43 Ala.App. 192
• Parties: James Lewis HAMILTON v. STATE.
• Court: Alabama Court of Appeals

Page 108

186 So.2d 108

43 Ala.App. 192

James Lewis HAMILTON v. STATE.

6 Div. 925.

Court of Appeals of Alabama.

Dec. 21, 1965.

Rehearing Denied March 8, 1966.

Wm. W. Conwell, Birmingham, for appellant.

Richmond M. Flowers, Atty. Gen., and John G. Bookout, Asst. Atty. Gen., for the State.

JOHNSON, Judge.

The appellant, James Lewis Hamilton, was tried in the Circuit Court of Jefferson County, Bessemer Division, under an indictment containing two counts. Count One charges assault with intent to murder. Count Two charges assault with intent to ravish. The jury returned a verdict of guilty as charged in Count Two. Appellant was adjudged guilty by the court of the offense of assault with intent to ravish and sentenced to seven years in the State penitentiary.

The alleged assaulted person is Barbara Sue Allen, who at the time was seventeen years of age. The testimony of the prosecutrix is substantially as hereinafter summarized.

On the night of the alleged assault the prosecutrix had a blind date with the defendant. The date was arranged by one Pat Reeves, whom the prosecutrix had known for about a year, and who had been married to one Walter Reeves for only a few days. The defendant was Walter Reeves' 'boss.' The defendant, Pat Reeves, and Walter Reeves picked up the prosecutrix at her home in Birmingham at approximately 8:00 PM., and the two couples went from there in the defendant's automobile to a 'night spot' called Watson's, where they remained for two or three hours. The prosecutrix was not served any alcoholic beverages at Watson's and she drank not more than half a glass of beer from the defendant's glass while there. When the two couples left Watson's they drove to the Graymont Cafe, which is located on Graymont Avenue in Birmingham. The prosecutrix had something to eat at this cafe but did not drink any alcoholic beverages. The defendant and Walter Reeves 'had some beer' at the cafe.

Walter Reeves drove the defendant's automobile when the two couples left the Graymont Cafe. His wife, Pat, sat in the front seat with him and the defendant and prosecutrix sat in the back seat. The defendant kissed the prosecutrix as they were driving along and then complained about the way she kissed, saying that she 'kissed like a high school kid.' When she refused to kiss him again, the defendant put his hand between the upper part of her thighs. She tried unsuccessfully to push his hand away and then slapped his hand, whereupon the defendant hit her with his fist and said something like 'no broad puts me down.' He also stated that he was going to take her to a motel. As she tried to repulse his advances he hit her with his fists several times and 'halfway ripped off' the shorts she was wearing. Each time the defendant hit her she yelled to Walter Reeves, asking him to stop the car, that she had to go to a restroom. Walter stopped the car at the Orbit Service Station, which is located on the 'Bessemer Super Highway.'

The prosecutrix got out of the car and went in the ladies' restroom at the Orbit Service Station. After about four minutes she left the restroom and tried to run away, but 'couldn't because there was a fence about four feet high that blocked the way.' She then locked herself in the men's restroom. After a few minutes the defendant opened the door to the men's restroom with a key, entered the room with the prosecutrix, and locked the door behind him. The prosecutrix asked him not to hit her again, but he struck her in the face and neck with his fist and she fell to the floor of the restroom. Before she fell the defendant said, 'To hell with the motel, let's do it here.' While she was lying on the floor the defendant ripped out the straddle or crotch of her shorts so that the shorts hung 'like a short skirt.' He also said something to the effect that he was going to have sexual intercourse with her. The prosecutrix stated that she was 'fighting all I could' and 'tried to talk him out of it.' She told him, 'Walter and Pat are waiting for us, we've got to take them home,' and 'This is crazy, you can't do something like this in the restroom.' The prosecutrix managed to get up from the floor, and she left the restoorm with the defendant holding on to her arm. The defendant did not expose his private parts in the restroom. As they left the restroom the prosecutrix asked the defendant to leave without her, that she would take a bus home. The defendant 'just laughed,' and she ran toward the service station attendant 'screaming' and 'begging' him to help her get away from the defendant. The defendant hit her and drug her across the pavement to his car. He forced her into the back seat of the car, and then got in the seat with her and put both of his arms around her neck, holding her in an 'arm lock.'

The car was driven away from the Orbit Service Station in the direction of Bessemer by Walter Reeves, and they stopped at the Reeves' home, which is located off the highway on the right side travelling towards Bessemer. Walter and Pat got out of the car. The defendant was still holding the prosecutrix in an arm lock. The prosecutrix asked if she could stay with the Reeves, or walk home, or make a telephone call. These requests were refused. She was 'put' in the front seat of the car, with the defendant holding her by one arm and Walter Reeves by the other. The defendant got in the driver's seat while Walter stood by the door on the side where the prosecutrix was sitting. The defendant drove away from the Reeves' home with just he and the prosecutrix in the car. He turned right onto the 'Bessemer Super Highway' and proceeded toward Bessemer. The prosecutrix 'begged' him to take her home but he 'only laughed,' and said that he was going to take her to a motel whether she wanted to go or not. After several minutes they passed a police car travelling in the same direction, and as they passed the police the prosecutrix put her head and arms out of the front window of the car in order to 'attract attention.' The defendant stated that she was getting to be too much trouble. After passing the police car he made a left turn (or U-turn) and proceeded back toward Birmingham on the same highway. While making the trun, or immediately thereafter, the defendant told the prosecutrix, 'Aw to hell with the motel, to hell with everything, I'm just going to kill you right now.' The defendant travelled only a short distance after making the turn before he pulled off to the right of the highway and stopped the car. Before stopping the car, the defendant grabbed the prosecutrix by her throat with one hand and held her head down in his lap. She kicked the right front door open before he stopped the car. When the car stopped he let go of her throat and held her around the waist, and then let go of her completely when a police officer walked up to the car. The prosecutrix got out of the car and told the police officer, 'he's trying to rape me.' The prosecutrix testified that she had a swollen lip, two black eyes, cuts and abrasions on her forehead, a stiff neck, and a scratch on her leg. On cross-examination she testified that the defendant did not try to rape her while they were riding in the car after leaving the Reeves' home.

Charles W. Gamble, a witness for the State, testified that he was the attendant at the Orbit Service Station during the night of the alleged assault. Gamble was waiting on a customer when the defendant's car pulled into the station about 2:00 or 3:00 A.M. The prosecutrix got out of the car and went towards the restrooms. Her clothes were torn and her hair was hanging in her face. A few minutes later another girl got out of the car and went to the restrooms, then returned to the car. Then she, Walter Reeves and the defendant left the car and walked behind the station where the restrooms are located. Walter Reeves came back to the front of the station and obtained the keys to both restrooms and went behind the station again. Then Walter and Pat (the second girl) walked out and got in the defendant's car. About five or ten minutes later Gamble saw the appellant 'dragging' the prosecutrix towards the car. She was 'screaming' and 'hollering' and 'trying to get loose.' The defendant pushed her into the car, got in the back seat next to her and locked his arm around her neck, and then Walter drove away towards Bessemer. Gamble testified that the Orbit Station is within the city limits of Birmingham.

W. L. Smith, testifying for the State, stated that he was working as a patrolman for the City of Lipscomb on the night of the alleged assault. Smith and another officer, a Mr. Kines, were travelling towards Bessemer on the Bessemer Super Highway at approximately 3:25 A.M. when the defendant and prosecutrix passed them, going in the same direction. The prosecutrix had her head and one arm out of the window of the car. The defendant made a 'U-turn' after passing Smith and proceeded towards Birmingham. Smith also made a 'U-turn', and defendant's car was approximately a block ahead of him at one time after making the turn. When the defendant's car was about thirty or forty feet from Ray Skewe's Service Station the front right door came open and the defendant drove his car onto the cement apron in front of the station and stopped. Smith stopped behind the defendant's car, and as he walked up to the car he saw the defendant holding the prosecutrix by the waist. Upon seeing the officer he released her and she ran to the officer and said that the defendant was trying to rape her. According to Smith, the prosecutrix had a bursted lip, a knot over her eye, and skinned places on her face. The crotch of her shorts were torn out. The officer did not smell any beer or intoxicating beverage on her. The defendant was in an intoxicated condition. Smith testified that Ray Skewe's Service Station and the point where he first observed defendant's car are both within the 'Bessemer Cutoff.'

Dr. H. C. Springer, whose qualifications as a...