Powell v. State, 6 Div. 440.

• Decision Date: 11 May 1948
• Docket Number: 6 Div. 440.
• Citation: 33 Ala.App. 522,35 So.2d 367
• Parties: POWELL v. STATE.
• Court: Alabama Court of Appeals

35 So.2d 367

33 Ala.App. 522

POWELL v. STATE.

6 Div. 440.

Alabama Court of Appeals

May 11, 1948

Geo Rogers, of Birmingham, for appellant.

A A. Carmichael, Atty. Gen., and L. E. Barton, Asst. Atty Gen., for the State.

The following charge was refused to defendant:

'14. The Court charges the jury that the burden is on the State to convince you of defendant's guilt to the exclusion of every reasonable doubt, and by evidence that overcomes the presumption of fact, that the law surrounds the defendant with that he is innocent of crime.'

HARWOOD Judge.

The indictment against this appellant contained two counts charging respectively assault with intent to ravish, and assault with intent to rob.

In the trial below the jury returned a verdict of guilty of simple assault, and assessed a fine of fifty dollars. As additional punishment the court imposed a sentence of hard labor for a term of six months.

The State's evidence was directed toward showing that Miss Grace Brown, a high school girl about fifteen years of age was returning to her home from choir practice around 9:15 o'clock the night of 9 October 1946. Miss Brown and the defendant boarded a street car, and both left the car at the same stop, which was in the western section of Birmingham.

Miss Brown, after getting off the car walked across the street and was followed by the defendant. The defendant then addressed some casual inquiries to Miss Brown, to which she replied. Then he asked her what grade she was in, and according to Miss Brown:

'I told him I was in the third semester, and then he says, 'Wait a minute,' and he grabbed me and I slapped him with my hand and screamed.

'Q. Now, what did he do when he grabbed at you? Just tell actually what he did when you made that remark, just describe what he did there. A. Well, when I saw what he was going to do, I stepped back and screamed and he grabbed my shoulder here (indicating), and so I slapped him. He says, 'Huh,' and I screamed again, and I had a history book in my hand and I hit him with the history book, and then he turned and ran.'

Immediately after this occurrence Miss Brown ran to the nearest house and made complaint to a Mr. Funk, and then continued on to her home, which was the next house, and made complaint to her father. Mr. Brown, the father, immediately dressed, and accompanied by his daughter, and a Mr. Sojourner, a neighbor, went in search of whoever had thus approached his daughter. Mr. Brown carried his shotgun with him. After touring around the general area for fifteen to thirty minutes the defendant was seen by a car stop post some blocks distant from the scene of the alleged assault.

Mr. Brown stopped his car and he, Miss Brown, and Mr. Sojourner got out. Mr. Brown approached the defendant with his shotgun leveled. The defendant asked 'What it was all about,' and was told by Mr. Brown it was because he had grabbed his daughter.

The defendant interposed timely objections to several questions seeking to bring out certain portions of the conversation that then ensued on the grounds that such statements were in the nature of a confession or admissions against interest, and no predicate showing their voluntary character had been established. The court overruled these objections, and it was then shown that the defendant had strenuously denied that he was the party who assaulted Miss Brown, and, according to Mr. Brown's testimony:

'He says, 'I wouldn't do anything like that.' He says, 'You can go down there and ask my mother.' and pointed...