McKenzie v. State, 6 Div. 490.

• Decision Date: 10 April 1947
• Docket Number: 6 Div. 490.
• Citation: 250 Ala. 178,33 So.2d 488
• Parties: McKENZIE v. STATE.
• Court: Alabama Supreme Court

33 So.2d 488

250 Ala. 178

McKENZIE v. STATE.

6 Div. 490.

Supreme Court of Alabama

April 10, 1947

Rehearing Denied Feb. 3, 1948.

Certiorair to Court of Appeals.

Geo Rogers, of Birmingham, for petitioner.

Wm. N. McQueen, Atty. Gen., and John O. Harris Asst. Atty, Gen., for the State.

SIMPSON Justice.

The defendant was convicted of an assault with intent to rape Miss Lois Eddins The Court of Appeals affirmed as proper the introduction of proof tending to show defendant's assault with intent to rape a Mrs. Outlaw at the same place a few weeks after the alleged assault on the prosecutrix, basing the decision on the intent rule enunciated by Wigmore, Vol. II, § 357 (3d Ed.), and applied in Wilkins v. State, 29 Ala.App. 349, 197 So. 75, certiorari denied, 240 Ala. 52, 197 So. 81.

The rationale underlying the principle of admissibility of evidence of such acts of like kind in this sort of case is that while the criminal intent accompanying one such act might not be clear, yet other assaults seemingly with criminal purpose to forcibly ravish, if of recent origin with reference to the crime on trial, would tend to negative the claim of innocent intent and render admissible proof of such like acts or offenses.

In laying down the general rule, Wigmore says the question is approached 'from the point of view of the doctrine of chances,--the instinctive recognition of that logical process which eliminates the element of innocent intent by multiplying instances of the same result until it is perceived that this element cannot explain them all. Without formulating any accurate test, and without attempting by numerous instances to secure absolute certainty of inference, the mind applies this rough and instinctive process of reasoning, namely, that an unusual and abnormal element might perhaps be present in one instance, but the oftener similar instances occur with similar results, the less likely is the abnormal element likely to be the true explanation of them. [After illustration] In short, similar results do not usually occur through abnormal causes; and the recurrence of a similar result (here in the shape of an unlawful act) tends (increasingly with each instance) to negative accident or inadvertence or self-defense or good faith or other innocent mental state, and tends to establish (provisionally, at least, though not certainly) the presence of the normal, i. e. criminal, intent accompanying such an act; * * *.' Wigmore, Vol. II, p. 196, § 302 (3d Ed.).

In applying the stated principle (§ 302) to the offense of assault with intent to rape, this authority asserts:

'The Intent principle (ante, § 302) clearly applies where the act is assumed as otherwise proved and the intent is in issue; i. e. in such cases, former acts of the kind are relevant to negative the intent as being of any other kind than to commit rape. (a) Where the charge is of assault with intent, the propriety of such evidence cannot be doubted. There should be some limitation of time, but merely to avoid the objection of unfair surprise (ante § 194). There need be no limitation as to the person assaulted, because the only purpose is to negative any other than the rape intent, and a previous rape-assault on another woman has equal probative value for that purpose, for it is the general desire to satisfy lust that is involved in this crime, and no particular woman is essential for this. Accordingly, where the charge is assault with intent, former acts of the sort should be received without any limitation except as to time; * * *.' Wigmore, Vol. II, p. 265, § 357 (3d Ed.).

It is to be noted that as to this crime, while the text seemingly approves the admission of proof of 'former acts of the kind,' it does not limit the proof to prior acts, nor does it denounce as inadmissible recent similar acts subsequently occurring, and we can perceive no sound basis for a distinction. We find that this author indicates in prosecutions for abortion that the intent principle is available and that on this issue it is permissible to prove the nature and effect of the instruments or drugs used and the use of them on other occasions 'either prior or subsequent' as tending 'to negative an innocent intent.' § 359(2), p. 270. This court approved the introduction of proof of other offenses of similar character, whether prior or subsequent, on the question of identification in Johnson v. State, 242 Ala. 278, 5 So.2d 632, and from the language of that opinion we deduce that were the issue one of intent the same principle would be applied, and we so hold.

Wigmore makes it clear that evidence which goes no further than showing character generally or disposition to commit crime is, of course, inadmissible (§ 190 et seq., Vol. I; § 402[c], Vol. II), but if such evidence goes further than showing character and bears probatively on the intent with which the act was committed, it is none the less admissible though it might also tend to discredit the defendant's character. It is deemed appropriate here to point out that in the case of Wilkins v. State, supra, the evidence of the other acts was admitted not to indicate the defendant's bad character generally or disposition to commit crime, but to show his peculiar and unnatural lustful desire for white women as bearing on the intent with which he assaulted the white woman in that case and as tending to negative any other but the rape intent. And as there observed, his previous misconduct, sexually, had been directed toward a particular class, i. e., white females; so, in that case, the night when he accosted the prosecutrix, it was a logical deduction which the jury could make, with the evidence of his previous conduct, that his intent was to gratify himself sexually, rather than to rob or to murder. 29 Ala.App. at page 354, 197 So. at page 79.

So, in the case now under review, while the evidence of an alleged attempt to rape Mrs. Outlaw might have had a tendency to show the defendant to be a bad man, it was not admissible on this basis but as tending toward the criminal intent and negativing the innocent intent (or any other, such as a simple assault) as regards the act committed on Miss Eddins. And this principle is emphasized in the instant case by the further fact the proof as to the attack on Mrs. Outlaw followed the like pattern or technique as to Miss Eddins, that is, luring her to the same secluded spot and first making use of the pretense of a lost bracelet and the like. People v. Cosby, 137 Cal.App. 332, 31 P.2d 218. Guided by this approved principle, we are in accord with the holding of the Court of Appeals that the evidence was competent. The single act perpetrated on Miss Eddins might have been plausibly claimed to have been done free of intent to ravish, and it was so claimed by the defendant, yet evidence of the recent other alleged attempt to ravish Mrs. Outlaw, executed in similar fashion and following a like pattern, tended to eliminate the probability ('chance,' as Wigmore says) that the act on the prosecutrix was innocent of such intent and therefore was relevant evidence on this issue.

The judgment is affirmed.

GARDNER, C. J., and FOSTER and STAKELY, JJ., concur.

LAWSON, J., concurs in the result.

BROWN and LIVINGSTON, JJ., dissent.

BROWN Justice (dissenting).

The opinion of the court of appeals as a predicate for the admissibility of the testimony going to show what subsequently occurred between the defendant and Mrs. Outlaw, states: 'The prosecutrix testified that the defendant approached her on the streets of Birmingham and invited her to go with him for an automobile ride. She reluctantly accepted, but did get in his car. Finally the appellant stopped the car on a by-road several miles out. There the defendant told her that he had previously lost a bracelet. After some casual search for the article which he claimed he lost, the accused began to make improper advances to her, accompanied with threats to do her bodily harm unless she acceded to his demands to have sexual intercourse. After much dissuasion on her part, the defendant abandoned his asserted aim and carried her back to the city. * * *'

This predicate is sufficient to justify a review of the ruling of the court of appeals which holds that the testimony is competent evidence. Birmingham Southern Ry. Co. v. Goodwyn, 202 Ala. 599, 81 So. 339; Reichert Milling Co. v. George, 230 Ala. 3, 162 So. 393.

There is nothing in the circumstances stated tending to show that the defendant entertained the intent to ravish the prosecutrix. She was within his power and his 'aim', whatever it may have been, was not frustrated or interrupted by any outside event or occurrence, nor did she escape from him. She was peacefully returned to the city unharmed. In the absence of tendencies in the evidence arising out of the defendant's acts and dealings with the prosecutrix going to show that he attempted to accomplish penetration accompanied by the intent to do so by force without her consent, the subsequent occurrence between Mrs. Outlaw and defendant sheds no light on the conduct of defendant towards Miss Eddins. Defendant did not attempt to have sexual intercourse without her consent. On the contrary, he voluntarily 'abandoned his asserted aim' and returned prosecutrix to the City of Birmingham without having sexual intercourse with her.

In Dudley v. State, 121 Ala. 4(7), 25 So. 742, 743, it was observed: 'In Jones' Case, [Jones v State, 90 Ala. 628, 8 So. 383, 24 Am.St.Rep. 850], the criminal purpose of the defendant was disclosed by him, but he used no violence on the prosecutrix. * * * 'If the evidence raises a mere suspicion, or, admitting all it tends to prove, defendant's guilt is left in uncertainty, or dependent upon conjecture or...