Payne v. State
| Decision Date | 24 January 1907 |
| Parties | PAYNE v. STATE. |
| Court | Alabama Supreme Court |
Appeal from Circuit Court, Butler County; J. C. Richardson, Judge.
Eddie Payne was convicted of assault with intent to ravish, and he appeals. Affirmed.
The defendant was indicted, tried, and convicted for an attempt to forcibly ravish a woman. The tendencies of the evidence sufficiently appear in the opinion, as do the refused charges, with the exception of charge 3, which is as follows "If from the evidence you do not believe that the defendant had any intention to forcibly ravish Barbara Grimes, at the time he put his arms around her, if you believe he did put his arms around her, but simply was persuading her to have intercourse with him, and from the evidence you believe defendant did nothing more, you cannot convict the defendant of any crime." There was a motion for a new trial, which is fully set out in the bill of exceptions, and to the court's refusal to grant it exception was reserved.
Pearson & Richardson, for appellant.
Massey Wilson, Atty. Gen., for the State.
1. The defendant was indicted under section 4346 of the Code of 1896 for an assault upon a woman with intent to forcibly ravish her. This included the lesser degree of a simple assault, or an assault and battery. Jones v. State, 79 Ala. 23; Horn v. State, 98 Ala. 23, 13 So. 329; Millender v. State (Ala.) 40 So. 664.
2. There was evidence from which the jury might have convicted of the lesser offense of an assault or of assault and battery, and charges 1 and 5, that if the jury believed the evidence, they must find the defendant not guilty, was properly refused.
3. The second charge, requested by the defendant, was properly refused. It instructed the jury that if they believed the evidence, they could not convict the defendant of an assault with intent to rape. The prosecutrix, Barbara Grimes testified that she accompanied defendant to Gentry's show, and after the show when they started home, coming to an alley, defendant grabbed witness around the waist and squeezed her to the ground, and stated that he was going to do it, and when defendant grabbed and squeezed her, trying to throw her to the ground, witness hallooed, screamed and called to her cousin, Joe, when defendant turned her loose and ran off; and she went home about 200 yards away; that all defendant did was to grab her around the waist and squeeze her to the ground. This occurred in the alley, as defendant testified.
Joe Blankenship testified, that about 10 o'clock at night he heard prosecutrix...
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