Patterson v. State
| Decision Date | 09 March 1966 |
| Citation | 218 Tenn. 80,22 McCanless 80,400 S.W.2d 743 |
| Parties | , 218 Tenn. 80 George PATTERSON v. STATE of Tennessee. |
| Court | Tennessee Supreme Court |
Bernard E. Bernstein and Ray Lee Jenkins, Legal Aid Clinic, Knoxville, for plaintiff in error.
George F. McCanless, Atty. Gen., and Edgar P. Calhoun, Asst. Atty. Gen., Nashville, for the State.
Patterson was indicted for the crime of burglary and assault and battery with intent to commit rape. The offenses have been charged in separate counts in one indictment. Upon a plea of not guilty the jury found Patterson guilty on both counts and fixed his punishment at nine years in the penitentiary for burglary and twelve years in the penitentiary for assault and battery with intent to commit rape. The judgment of the court was that Patterson serve not less than five years nor more than nine years in the penitentiary for burglary and that he serve not less than ten years nor more than twelve years in the penitentiary for assault and battery with intent to commit rape. The sentence for the second offense was to begin at the expiration of the sentence for burglary. An appeal has been seasonably perfected upon a narrative bill of exceptions; able briefs filed and arguments heard. After a thorough study of the matter we are now in a position to decide the case.
Factually the record shows that one Sue Dyer, age thirteen (13) at the time of the event, went to sleep on August 29, 1964, in the same bed with a little sister and her grandmother at their home in Knoxville. Sue awoke about 6:00 a.m. on the following morning with dogs barking both inside and outside the house and a Negro man at her bed running his hand over her and trying to take her shorts off. She screamed and the man told her to shut up or he would kill her grandmother. The intruder also said that he did not want money.
There was a light in the kitchen a short distance from this bedroom and she could see that the intruder had a knife in his hand. Later, this intruder forced the occupants of the house to go inside the kitchen and there he had a pistol.
The mother of this little girl testified that she awoke because the dog that stays in the house was barking and biting her on the toe. She said she heard screaming and talking and ran to her daughter's bedroom and saw the intruder who told her, the mother, that he would kill her and told her, 'You know what I want.' The intruder had forced them all into the kitchen where he tried to take the teen-age girl's shorts off. He was feeling over her body and he had backed the teen-age girl into a corner and tried to feel of her privates. The girl was crying and pleading with him to leave her alone.
At about this point the mother of this little girl offered the intruder money but he stated he didn't want money. The mother also told him that 'If that's what you want leave that child alone and take me.' Temporarily the defendant left the child and tore the buttons off the mother's blouse and ran his hands over her body. The mother testified that he tried to rape her. The dogs were barking so loud outside that the defendant went to the door and looked out with the mother right behind him. The mother kicked or shoved him out the door, slammed it shut and locked it. The husband and father of the little girl had left home about 4:30 that morning for work.
After this occurrence the mother went to a fire hall and called the police and gave them a description of the assailant. The police officers arrested two Negroes and brought them to her house and she told them that neither one was the defendant. Later they called the mother and child to come to the city jail and view a line-up of three colored men and some white men. At this line-up the daughter and mother identified Patterson as the intruder.
The grandmother testified in this case and her testimony was the same as that of the little girl and her mother. A city detective who investigated the case stated that he found on the outside of the house a bedroom window broken open with mud smears on it, the glass was broken out and the screen pushed in. There was a muddy footprint under the window.
At the time these men were in this line-up Patterson was wearing a goatee, but it had been shaved off on the morning before the trial.
The defendant testified in his own behalf and said that he had never seen the woman before he was identified in the line-up and that he did not commit the crime and that on that night he was at home in bed with his wife. His wife corroborated his testimony.
The assignments of error are to the effect, one, that the court refused to instruct and charge the jury with regard to lesser included offenses and erred in refusing to give a special request to this effect, which was:
'If the evidence is such, that you do not think there has been a showing of intent to commit rape, you may find from the evidence that the defendant is guilty of an assault with intent to commit a felony or merely of assault and battery or of no offense.'
The second assignment is that the trial court erred in refusing the defendant a new trial because there was no material evidence to support the verdict. The third assignment is that the evidence preponderates against the verdict and in favor of the innocence of the accused.
Of course, the special request, as above quoted, deals only with the conviction for assault and battery with intent to commit rape. To convict one of an assault and battery with intent to commit rape it is necessary that there be an assault and battery upon a female who is at least twelve years of age or older and that there be an intent to have unlawful carnal knowledge of her forcibly and against her will. T.C.A. § 39--605; Rhodes v. State, 41 Tenn. 351.
It is noted from what we have said above about the factual situation here that the prosecution for this crime concerns only the thirteen year old girl, that is, the indictment charges an assault and battery with intent to commit rape upon the child--not upon the mother or grandmother.
It seems clear to us, and we are satisfied beyond peradventure of a doubt, that the evidence is clear, convincing and completely undisputed that this assailant did make an assault and battery upon this child and that his actions were all directed at having carnal knowledge of this child--he even announced such as his purpose. It is likewise clear that all of this was done against the will of the child. There was no threat to kill the child.
Thus it is, under this factual situation the only issue presented to the jury in this case was the question of whether or not the defendant was the assailant.
The argument is very forceful that the trial judge erred in not charging as to the lesser degree of the crime or included offenses, and this is primarily based upon our statute, T.C.A. § 40--2518, which reads:
'It shall be the duty of all judges charging juries in cases of criminal prosecutions for any felony wherein two (2) or more grades or classes of offense may be included in the indictment, to charge the jury as to all of the law of each offense included in the indictment, without any request on the part of the defendant to do so.'
It is the holding by the...
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