Myhand v. State, 4 Div. 711

• Decision Date: 30 June 1953
• Docket Number: 4 Div. 711
• Parties: MYHAND v. STATE.
• Court: Alabama Supreme Court

Page 544

66 So.2d 544

259 Ala. 415

MYHAND v. STATE.

4 Div. 711.

Supreme Court of Alabama.

June 30, 1953.

Rehearing Denied Aug. 6, 1953.

Jas. A. Mulkey, Geneva, for appellant.

Si Garrett, Atty. Gen., and Robt. Straub, Asst. Atty. Gen., for the State.

PER CURIAM.

The appeal is from a judgment of conviction for rape, with infliction of the death penalty.

The date of the alleged crime was fixed as May 21, 1952. Appellant was indicted by a grand jury of Geneva County on July 24, 1952, and arraigned on that day. He was unable to employ counsel, so prior to arraignment the trial court, under the provisions of § 318, Title 15, Code 1940, as amended, appointed counsel to represent him. Upon arraignment, Myhand, the appellant, pleaded not guilty and not guilty by reason of insanity. As shown above, the jury found him guilty and imposed the death penalty. Judgment and sentence were in accord with the verdict. Motion for new trial was overruled. The appeal here is under the automatic appeal statute. §§ 382(1)-382(13), Title 15, Code 1940, 1951 Cum.Pocket Part, pp. 100-104.

The locale of the alleged crime is a farming community in the eastern part of Geneva County where appellant and prosecutrix both lived.

Prosecutrix, Shelby June Edmondson, is a young white girl, the daughter of a tenant farmer. She was not quite thirteen years of age at the time the crime is said to have been committed.

Appellant, Reuben Myhand, is a young Negro man who was about twenty years of age at the time of the alleged crime. He lived with his parents, who were also tenant farmers and who lived on the farm of Mr. Clyde Merritt, a short distance from the home of the Edmondsons.

We see no necessity for making a detailed statement of the evidence. For the purposes of this appeal we think the following summary will suffice.

The prosecutrix testified that shortly after two o'clock on the afternoon of May 21, 1952, when she and her two-year-old brother were on their way to a field where her parents and another brother were working, she was stopped by a Negro man, who had a handkerchief over his face and who pushed and shoved her into a deep ditch, bordered by thick growth. While in the ditch she removed her underclothes as the result of threats made by the Negro man, and thereafter he inserted his private part into her vagina. While in the ditch the handkerchief fell from the man's face. He replaced the handkerchief over his face, but not until after she had gotten a good look at him. The man was wearing a brown shirt with a safety pin in it and overall pants.

After she was released by her assailant, she and her little brother returned to their home and after remaining there a few minutes, they went to the field where her parents were working, where she reported the fact of the attack. Prosecutrix was taken to Slocomb, a nearby town, where the attack was reported to the police authorities and where prosecutrix was examined by a physician. The fact that the vagina of the young girl had been recently penetrated is definitely established by medical testimony.

According to the testimony of Mr. Clyde Merritt, the employer of appellant, who was called as his witness, he saw and talked with appellant at about four o'clock on the afternoon the crime is said to have been committed. While talking to appellant at the home of a colored man by the name of Taylor, Mr. Merritt heard through another person of the alleged attack upon the young Edmondson girl. Merritt immediately went to the Edmondson home, where he heard the description given by the young girl of the man who had attacked her. He contacted the police officers, who accompanied him back to the Taylor home, but appellant had left and gone to his home situate just a short distance away from the residence of Mr. Merritt. Mr. Merritt and the police officers found appellant at his home. He was wearing clothes similar to those said to have been worn by the alleged rapist. Appellant was taken to the Edmondson home where he was identified by the young girl and where he was placed under arrest.

Shortly after his arrest, appellant was driven in a highway patrol car to a point near the city of Geneva, the county seat of Geneva County. It having been determined it would be advisable to confine appellant in the Houston County jail, he was placed in another highway patrol car and driven to Dothan.

Aside from the positive identification of appellant by the prosecutrix, the State introduced in evidence admissions of guilt made by the defendant and also introduced certain evidence of a scientific nature tending to show that appellant was the party who attacked the young girl.

On the trial Myhand denied his guilt and repudiated the alleged confessions, contending they were extorted from him by coercive methods. He sought to establish an alibi, but as we read the record his statement as to his whereabouts at the time the offense is alleged to have been committed stands uncorroborated.

Penetration alone, the other elements of the crime concurring, is rape without regard to actual completion of the sexual act. § 396, Title 14, Code 1940; Posey v. State, 143 Ala. 54, 38 So. 1019; Waller v. State, 40 Ala. 325; Herndon v. State, 2 Ala.App. 118, 56 So. 85; Harris v. State, 2 Ala.App. 116, 56 So. 55.

The evidence was not only sufficient to take the case to the jury on the charge of rape, but was amply sufficient to support the verdict of the jury.

There was very little, if any, evidence tending to support the plea of not guilty by reason of insanity. Certain it is that we cannot say that the jury was not fully justified in finding that appellant failed to meet the burden which was upon him to clearly prove this defense to the reasonable satisfaction of the jury. § 422, Title 15, Code 1940; Parsons v. State, 81 Ala. 577, 2 So. 854; Wingard v. State, 247 Ala. 488, 25 So.2d 170; Hall v. State, 248 Ala. 33, 26 So.2d 566; Lakey v. State, 258 Ala. 116, 61 So.2d 117.

The able counsel who were appointed to defend Myhand in the court below have been appointed to represent him on this appeal, and we think it in order to observe at this point that the appointed counsel have taken their responsibilities seriously and have done their full duty intelligently and well.

In the main, counsel for appellant in brief filed here argue for reversal of the judgment below because of admission by the trial court of certain evidence offered by the State and because of argument of the State's counsel.

Reversible error does not appear in the action of the trial court in permitting the solicitor to ask leading questions of the witness Shelby June Edmondson, the prosecutrix, who at the time of the trial was thirteen years of age. Brassell v. State, 91 Ala. 45, 8 So. 679; Puckett v. State, 213 Ala. 383, 105 So. 211; Stewart v. State, 26 Ala. App. 392, 161 So. 112; Ballew v. State, 23 Ala.App. 274, 124 So. 123.

The undergarments worn by Shelby June Edmondson at the time of the attack were properly identified and were shown by the testimony of an expert witness to contain human blood stains. Such undergarments were admitted in evidence without reversible error. Taylor v. State, 249 Ala. 130, 30 So.2d 256; Robinson v. State, 243 Ala. 684, 11 So.2d 732; Puckett v. State, supra.

Immediately after Myhand was brought to the Houston County jail he removed the outer clothes he was wearing--shirt with safety pin in it and overall pants--and put on some clothes which belonged to Highway Partolman Prier. These articles of clothing of appellant were delivered by Officer Prier within a short period of time to Assistant State Toxicologist Sowell, who kept them in his possession until time of trial. It having been shown that on the afternoon of the attack appellant was wearing these articles of clothing, the trial court permitted them to be introduced in evidence by the State.

Appellant's counsel recognizes the rule of our cases to the effect that the wearing apparel of a defendant, identified as that worn by him at the time of the crime, when tending to shed light on the issues is properly admitted in evidence. Taylor v. State, supra; Robinson v. State, supra; Daniels v. State, 243 Ala. 675, 11 So.2d 756.

Counsel for appellant insist, however, that appellant's clothing was improperly admitted in evidence for the reason that appellant was compelled to remove his clothes and give them to Officer Prier and hence to permit the introduction of the in evidence was tantamount to compelling appellant to produce testimony against himself, in violation of the provisions of Art. 1, § 6 of the Alabama Constitution. Without passing on the question of whether such articles of clothing would have been admissible if the evidence showed that appellant was compelled to deliver them to Officer Prier, we are of the opinion that the trial court did not err in permitting the State to introduce the clothing in evidence for the reason that under the evidence adduced the trial court was amply justified in finding that appellant was not compelled to take off his clothes and give them to the officer, but that he did so readily and voluntarily upon being told by the officer that the latter wanted to keep the clothes for evidence. Moss v. State, 146 Ala. 686, 40 So. 340.

While appellant was being driven to Dothan from a point near Geneva, the officers who had him in custody contacted by radio a 'medical technologist' connected with a Dothan hospital. Upon arriving at Dothan the appellant was taken to the hospital and there the 'medical technologist' took 'smears' from appellant's penis. These 'smears' were placed on 'slides' which were put in an envelope and delivered to Officer Prier, who then took the envelope and its contents to the Houston County jail. Within a short time Officer Prier delivered the envelope containing the 'slides' to Assistant State Toxicologist Sowell, who in turn carried the envelope and its contents to his headquarters in Auburn, where the 's...