Jones v. State, 1 Div. 549

• Decision Date: 21 January 1975
• Docket Number: 1 Div. 549
• Citation: Jones v. State, 307 So.2d 59, 54 Ala.App. 251 (Ala. Crim. App. 1975)
• Parties: Sterl JONES v. STATE.
• Court: Alabama Court of Criminal Appeals

Page 59

307 So.2d 59

54 Ala.App. 251

Sterl JONES v. STATE.

1 Div. 549.

Court of Criminal Appeals of Alabama.

Jan. 21, 1975.

No brief for appellant.

William J. Baxley, Atty. Gen., and David W. Clark, Asst. Atty. Gen., for the State.

HARRIS, Judge.

Appellant was convicted of the offense denounced by Title 14, Section 326(2), Code of Alabama 1940, as last amended, which provides, in pertinent part, as follows:

'It shall be unlawful for any person of take or attempt to take any immoral, improper, or indecent liberties with any child of either sex under the age of sixteen years, with intent of arousing, appealing to, or gratifying the lust or passions or sexual desires, either of such person or of such child, or of both such person and such child, or to commit, or attempt to commit any lewd or lascivious act upon or with the body, or any part or member thereof, of such child, with an intent of arousing, appealing to, or gratifying the lust or passions or sexual desires, either of such person or of such child, or of both such person and such child. * * *'

Appellant was represented at arraignment and trial by employed counsel. He is not indigent but no brief has been submitted in this court in his behalf. The state has filed a brief.

The jury found appellant guilty as charged in the indictment and the court sentenced him to five years imprisonment in the penitentiary.

The evidence was in sharp conflict. The testimony adduced by the state made out a clear case of guilt. The testimony on behalf of appellant tended to establish an alibi.

The victim was a nine-year old girl living with her parents and two half-brothers, ten and eleven years of age. Appellant was a fifty-six year old man, who was formerly married. The offense allegedly occurred on the afternoon of April 16, 1974, in Frisco City, Monroe County, Alabama.

The victim testified that when she arrived home from school about 3:30 P.M. on April 16, 1974, appellant and his retarded son were at her home eating fish that appellant had given her parents earlier in the day. She and her two half-brothers sat at the table and ate fish, too. About thirty minutes later, appellant asked her parents if he could carry her and her brothers horseback riding. Permission was granted and the victim got in the cab of appellant's pickup truck. She was sitting between appellant and his retarded son. Her brothers rode in the back of the truck. The pony they were going to ride was at the home of another son of appellant's some three or four blocks from the victim's home in Firsco City. When they got to the place where they were to ride the pony, appellant suggested that the victim's brothers get out of the truck and remain there until he returned but they refused to leave the truck. Appellant drove around Firsco City and while riding he put his hand up and under the victim's shirt and she pulled his hand away. Appellant made two short stops and started back to where the children were to ride the pony. On the way back, he put his hand inside the victim's underpants. When he got to the place where the pony was, he stopped and everyone got out of the truck. While appellant was leading the pony for the brothers to ride, appellant's retarded son put the victim on the ground and held her there until the boys were through riding. He let her up and she walked to the pony and appellant helped her mount. He led the pony behind a shed to the stable and the retarded boy told the brothers not to go behind the shed but they had a clear view of appellant, the victim and the pony. They saw appellant put his arms around the victim's neck and hug her and they saw him trying to kiss her. She managed to push him away from her and returned to the truck. She was forced to ride in the cab again between appellant and the retarded boy. When appellant was driving them home, he told the victim that she had better not tell her mother and father. It was almost 6:00 P.M. when appellant brought them back home.

The victim's mother was in her car preparatory to making a trip to the grocery store when appellant brought the children home. He let them out and drove away without saying a word. The boys went in the house but the victim got in the car with her mother. According to the victim's testimony there was another woman in the car and she was too embarrassed to tell her mother what appellant had done to her. When her half-brothers got in the house, they told their father everything they had observed appellant do to their sister. When the mother and the victim returned from the grocery store and entered the house, the father told the story to her and the victim started crying and said, 'Mother, I was just fixing to tell you.'

The parents immediately carried the victim to the office of Dr. B. L. Hanks in Frisco City. Dr. Haks's qualifications were admitted and he testified that he conducted a vaginal examination. We quote from the record:

'Q. What did your examination show, Doctor?

'A. Well, as I said, normally, there's a thin membrane over the outlet of the vagina in a young girl--there's a thin membrane covering and it's solid--there is no hole in it--in a young girl--and on this child, there was a hole in it approximately half an inch in diameter that I could have put my little finger through.

'Q. Did that hole appear to have been recently placed there?

'A. Yes, the tissues were redder than they should have been and appeared to be irritated. There was no definite scratch mark but it was...