Jacobi v. State

CourtSupreme Court of Alabama
Citation32 So. 158,133 Ala. 1
Decision Date17 April 1902

32 So. 158

133 Ala. 1


Supreme Court of Alabama

April 17, 1902

Appeal from city court of Montgomery; W. H. Thomas, Judge.

Sanford Jacobl was indicted and tried for an assault upon Lizzie Parker, "a woman, with the intent forcibly to ravish her, against the peace and dignity of the state of Alabama," and was convicted of the offense charged in the indictment, and sentenced to the penitentiary for 20 years. He appeals. Affirmed.

The appeal in this case is taken from a judgment rendered on the second trial. The first trial resulted in a mistrial. At the first trial, Lizzie Parker, the person assaulted, was present, and testified as a witness. Lizzie Parker was not present at the second trial, but secondary evidence was introduced as to what she testified upon the first trial. The defendant objected to the introduction of this evidence, and separately excepted to the court's overruling each of his objections. The facts relating to the introduction of the secondary evidence are sufficiently shown in the opinion.

The evidence for the state tended to show that Miss Lizzie Parker arrived in Montgomery at night from Butler county, where she had been visiting; that she was on her way to Clanton, in Chilton county, where she resided with her mother; that the train on which she came to Montgomery did not make connection with the train going to Clanton, and that it was necessary for her to remain in Montgomery overnight; that she had some relatives living in Montgomery, and that, while talking to a transfer man about going to the house of her relatives, her conversation was overheard by the defendant; that the defendant stated to her that he knew her relatives, and where they lived, and, after some conversation, induced her to let him go with her to the place of business of her said relative; that, after going to the place of business, the defendant and Miss Parker walked to the principal street in Montgomery, where he secured a hack; that defendant gave instructions to the hackman to take him and Miss Parker to an assignation house; that upon arriving at said house he went in the room with Miss Parker, and attempted forcibly to ravish Miss Parker; and that while so attempting two policemen came to the door of the room where the defendant and Miss Parker were. The theory of the defendant was that there was no attempt forcibly to ravish Miss Parker, but that what was done by the defendant was the outgrowth of passion, and was not seriously objected to by the prosecutrix.

Upon the introduction of all the evidence, the court, at the request of the state, gave to the jury two written charges. The second of these charges is copied in the opinion. The first charge was as follows: "(1) If the jury believes from the evidence, beyond a reasonable doubt, that in this county, and within three years before the finding of this indictment, the defendant, by a false representation of the character of the house, induced Miss Parker to go with him to an assignation house; that, arriving there, he locked the door of the room, took off his coat, and put his arm around her, and asked her to have sexual intercourse with him; that she refused, and moved her seat; that he followed her to the bed when she sat down upon the side thereof, if she did so sit, and again put his arm around her, forced her down upon the bed, and threw his leg over her, at the same time having his pants unbuttoned and exposing that part of his person, and that while in said room said Jacobi told her that she had to stay with him; that afterwards she got away from the bed and started across the floor, he again caught hold of her, and was holding her, when there was a knock upon the door, and he then released her and started to putting on his elothing,--the jury are authorized to look at these facts, if they be facts, in connection with all the other evidence in the case, in determining whether or not the defendant assaulted Miss Lizzie Parker, and, if he did so assault her, whether or not at the time of such assault he had the intent to have sexual intercourse with her against her will and by force, if necessary to accomplish his purpose; and if the jury are satisfied beyond a reasonable doubt that defendant did assault Miss Lizzie Parker, and had at the time such intent, he would be guilty of an assault with the intent to ravish, and the jury should so find." To the giving of this charge the defendant separately excepted. The defendant also separately excepted to the court's refusal to give the following charge requested by him: "If the jury believe the evidence in this case, they must find the defendant not guilty of the charge of an assault with the intent to ravish, as charged in the indictment." The defendant also separately excepted to the court's refusal to give each of the following charges requested by him: "(1) In a charge to commit rape, the evidence, to be sufficient to justify conviction, must show such acts and conduct on the part of the defendant that there is no reasonable doubt of his intention to gratify his lustful desire notwithstanding any resistance on the part of the female. (2) Before the jury can find the defendant of an assault to ravish in this case, the jury must believe from the evidence, beyond all reasonable, that it was the purpose of the defendant to fully accomplish his purpose in such a manner and by such means that, if accomplished, it would be rape; that is, there must be an intent to use force, terror, intimidation, and the like, necessary to accomplish the purpose. (3) The court charges the jury that the state is required to show by evidence, beyond a reasonable doubt and to a moral certainty, the existence of every fact necessary to establish the guilt of the defendant, before he can be convicted. If from all the evidence to be proved. (4) If the jury believe from the evidence that there was anything in the conduct of Miss Parker which impliedly gave her consent to the defendant to put his arms around her and take liberties with her, and he did not put his hands upon her in a rude or angry manner, but under the mistaken belief that she consented thereto, then, upon this state of facts, without more, the defendant would not be guilty of an assault, or an assault and battery."

A. A. Wiley, Jno. W. A. Sanford, Jr., J. M. Chilton, and Henry L. Lazarus, for appellant.

Chas. G. Brown, Atty. Gen., for the State.


Upon a full and exhaustive consideration of the question on principle and authority, this court, in Lowe v. State, ruled that "the testimony of a witness on a former trial or prosecution of the defendant [32 So. 160] for the same offense is admissible as evidence against him on a second trial, if the witness is beyond the jurisdiction of the court, whether he has removed from the state permanently or for an indefinite time," or, to state the ruling perhaps more accurately, that, when the witness has removed from the state permanently or for an indefinite time, his testimony on any former trial of the defendant for the same offense may be given in evidence against the defendant on any subsequent trial. 86 Ala. 47, 5 So. 435. This decision has been often followed and reaffirmed by this court. We are entirely satisfied of its soundness, and we now again follow and reaffirm it.

Whether the predicate for the introduction of secondary evidence reproducing the testimony of Miss Parker on the former trial was sufficiently and properly laid on the last trial is another important question for adjudication on this appeal. Of course, the burden was upon the prosecution to show to the reasonable satisfaction of the trial judge that the witness had left and was out of the state at the time of the trial, and that her absence was of a permanent or indefinite nature. On this matter evidence was adduced before the judge of the city court that process to secure the witness' attendance had been sent to the counties of Chilton, Jefferson, and Butler. Chilton was the county of the witness' last known residence in this state. The process was returned from that county "Not found." It does not appear in evidence why process was sent to the county of Jefferson. It, too, was returned "Not found." It appeared that the witness had at some indefinite time in the past taught school in Butler county, that after this she returned there in the summer of 1900 on a visit, and that she was returning from that visit to her home in Chilton county when the assault was committed on her...

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54 cases
  • Mitchell v. Kinney, 6 Div. 805.
    • United States
    • Supreme Court of Alabama
    • January 15, 1942
    ...Kent Com. (12th Ed.), 431, note (c); Ringgold v. Barley (5 Md. 186), 59 Am.Dec. 111, note. * * * " Such was the holding in Jacobi v. State, 133 Ala. 1, 32 So. 158, and the application was denied by the Supreme Court of the United States in 187 U.S. 133, 23 S.Ct. 48, 47 L.Ed. 106. To the sam......
  • Morris v. State
    • United States
    • Supreme Court of Alabama
    • April 28, 1906
    ...properly admitted. Lett's Case, 124 Ala. 64, 27 So. 256, and authorities there cited; Wilson's Case, 140 Ala. 43, 37 So. 93; Jacobi's Case, 133 Ala. 1, 32 So. 158. The motion made by the defendant to exclude the state's evidence as to the shooting of B. F. Grisham (deceased) on the grounds ......
  • Meldrum v. State, 788
    • United States
    • United States State Supreme Court of Wyoming
    • March 8, 1915
    ...of a living witness given at a former trial and who has left the jurisdiction, to be proven by secondary evidence. (Jacobi v. State, 32 So. 158, (Ala.); Young v. People, 130 P. 1011, 1018 (Colo.); Grant v. State, 148 S. W., 760, 763, (Tex. Cr. App.) The rule excluding such evidence is suppo......
  • McGuff v. State, 6 Div. 423.
    • United States
    • Supreme Court of Alabama
    • August 2, 1946
    ...Wigmore on Evidence, 2d Ed., § 581. The argument that a person's mental state is not a fact is answered in Jacobi v. State, 133 Ala. 1, 32 So. 158, 162, where this Court quotes L. J. Bowen's phrase that 'The state of a man's mind is as much a fact as the state of his digestion.' It is also ......
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