Pumphrey v. State

• Decision Date: 21 May 1908
• Citation: 156 Ala. 103,47 So. 156
• Parties: PUMPHREY v. STATE.
• Court: Alabama Supreme Court

47 So. 156

156 Ala. 103

PUMPHREY v. STATE.

Supreme Court of Alabama

May 21, 1908

Rehearing Denied July 3, 1908.

Appeal from Tuscaloosa County Court; H. B. Foster, Judge.

Vit Pumphrey was convicted of assault with intent to ravish, and he appeals. Affirmed.

Vande Graaff & Sprott, for appellant.

Alexander M. Garber, Atty. Gen., for the State.

DENSON J.

The defendant was tried and convicted for an assault with intent to ravish. The only question presented for review by this appeal is the sufficiency vel non of the evidence to authorize a submission to the jury of the inquiry as to the defendant's guilt or innocence of the intent to ravish. In other words, the defendant's insistence is that the court should have instructed the jury affirmatively (as requested by him) that the defendant could not be convicted of an assault with intent to ravish.

The prosecutrix was the only witness examined in respect to the circumstances of the assault, and it is upon her evidence mainly, that the court must decide the question presented. She testified substantially as follows: "I live in Tuscaloosa county, about four miles from Tuscaloosa, with my brother, B. T. Harper. One night last August my brother was away from home. I was in the house alone. I retired very early that night. I was awakened about 10 o'clock. Somebody was in my room. The first thing that I recollect was some very heavy pressure on me and I could not move. Finally I did move, and I touched somebody--their hand. I thought maybe I was mistaken, and I found I was not, and that it was somebody. Then I put my hand on his knee and breast. When I felt his breast his body was raised in the bed. To the best of my recollection his leg was on the bed. His leg was in a bent position. Afterwards I saw some sand on the bed. The window was right at the edge of the bed. The bed stood right in front of the window. The head of the bed was about 4 inches from the wall of the room, and the foot was about 15 inches from the wall. When I felt the pressure of some one he must have been in the bed. I was in the bed when I got my hand on his. I asked: 'What is that, who are you, and what are you doing in here?' I sprang from the bed grabbed my doorknob, and opened the door. I was so excited that I came near falling down. While this was going on the person jumped out of the window. He got out of the window after I got out of the bed. The pressure was not that of a hand. It was something heavier than a hand. I could not move. I could not tell whether he was a white man or a negro. I was asleep when he came in the room, and awake when I felt the pressure and asked who it was. My hands were not held, and no one had hold of me." In answer to the question on cross-examination, "Did the person in the room make any movement before you moved your hand?" the witness said: "Of course he must have moved, for when I first felt him I could not move. I felt something, but I could not tell what it was until I put my hand on him." She was also asked this question: "At any time after you were aroused, Mrs. Crimm, did that person make an effort to catch hold of your hands, or throat, or make an effort to seize you." She answered: "When I moved, it seemed some one had hold of my hand. That was all I recollect." She further testified: "When I started out of bed, I said: 'I will see who you are.' When I said that I got out of bed, and he did, too. The window was not closed that night."

The prosecutrix is a white woman, and the defendant a negro. Defendant lived about a quarter of a mile from the Harper house. The principle invoked by the defendant is that force is an essential element of rape, and that, on a charge of assault with intent to commit rape, the evidence, to be sufficient to justify the conviction, should show such acts and conduct on the part of the accused as would leave no reasonable doubt of his intention to gratify his lustful desire against the consent of the female and notwithstanding resistance on her part. This principle is well supported by our own decisions, and we accept it as the law. Jones' Case, 90 Ala. 628, 8 So. 383, 24 Am. St. Rep. 850; Toulet's Case, 100 Ala. 72, 14 So. 403. While this is true, yet, in making application of the principle in the concrete, each particular case, we think, must stand upon its peculiar facts and circumstances. As to this offense the law looks beyond the act done and embraces the accompanying intent. It is the intent that raises the act to the gravity of a felony, and calls...