Smith v. State

• Decision Date: 27 February 1962
• Docket Number: 3 Div. 82
• Court: Alabama Court of Appeals
• Parties: Hobert Ray SMITH v. STATE.

Page 474

138 So.2d 474

41 Ala.App. 528

Hobert Ray SMITH v. STATE.

3 Div. 82.

Court of Appeals of Alabama.

Feb. 27, 1962.

W. Clarence Atkeison, Prattville, for appellant.

MacDonald Gallion, Atty. Gen., and Leslie Hall, Asst. Atty. Gen., for the State.

HARWOOD, Presiding Judge.

This appellant stands convicted of rape, his punishment having been fixed at 18 years in the penitentiary. The evidence introduced by the State tends to show that this appellant and his family were neighbors of the prosecutrix and her family. The two families had been on friendly terms for a long time, and the prosecutrix and her brothers and sisters addressed the appellant as 'Uncle Hobert.' Mr. and Mrs. Rawlinson, the parents of the prosecutrix had been in Montgomery during the pre-Christmas season selling Christmas trees. Prosecutrix, who is 14 years of age and her younger brothers and sisters, were left in the Rawlinson home at this time.

The evidence further shows that the prosecutrix is mentally retarded and suffers from curvature of the spine and subnormal vision.

Upon the return of Mr. and Mrs. Rawlinson to their home about 9:45 P.M., on 21 December 1960, Mrs. Rawlinson entered the den and discovered the appellant on top of the prosecutrix on a sofa. She pulled the appellant off of her daughter and onto the floor. The appellant's pants were unzipped and his privates were exposed. Her daughter was blue and semi-conscious. The appellant sat up and she slapped him and he said, 'Get the gun and shoot me, kill me before I leave.' His pants were bloody in front.

The prosecutrix did not have on any pajama bottoms and she was bloody around her private parts and her mouth.

Mrs. Rawlinson testified that as she entered the den the appellant was saying to the prosecutrix, 'If you say another thing, God damn you, I'll kill you.' Mr. and Mrs. Rawlinson devoted their attention to the unconscious prosecutrix and the appellant left the house.

A medical witness testified as to the examination of the prosecutrix and of her injuries.

The prosecutrix testified that the appellant came to her home on the night in question and asked where her Daddy was. She replied that her Daddy was in Montgomery. The appellant then came into the house 'and started getting on top of me' and started pulling her pajamas off. The prosecutrix testified to facts clearly indicating that the appellant had sexual intercourse with her.

She further testified that the appellant told her that if she screamed again he would slap the _____ out of her.

Mr. Robert Turner, chief deputy sheriff of Autauga County, testified that on the night in question he went to the appellant's home, placed him under arrest and brought him back to the jail in Prattville. At the time of the arrest, the appellant was informed that he was being arrested for the offense of rape. Mr. Turner did not have a warrant with him at this time. After proper predicate as to voluntariness had been established, Mr. Turner testified that when he informed the appellant he was accused of rape, the appellant stated that he could prove where he had been since he had left his work that afternoon.

The next day, Mr. Turner and two other deputy sheriffs, and Mr. Glenn Curlee the solicitor, interviewed the appellant. After a full predicate as to voluntariness, Mr. Turner testified that prior to this interview the appellant was advised that he did not have to make a statement, that any statement he made could and probably would be used against him, and he was further advised that he could have counsel before he made any statement. After this preliminary the appellant then stated that he got off from work about 7 P.M., and before leaving his place of employment he had a drink with one of his fellow workers. On the way to downtown Montgomery, he stopped in a restaurant and had another drink. He then proceeded to a jewelry store in Montgomery and purchased a 'bridal set' of rings, and this is the last thing he remembers until he found himself in jail about 11:30 P.M., that night.

Mr. Turner further testified that the appellant told him that he had changed clothes at his home. After placing the appellant in jail Mr. Turner returned to the appellant's home to obtain the clothing. This clothing, however, had been taken by appellant's brother who apparently told Mr. Turner in a telephone conversation that the clothing was in the brother's automobile which was parked in front of his house. Mr. Turner testified that the appellant's brother 'willfully' gave him the clothes and he obtained them from the brother's automobile, the brother having already gone to bed when he arrived at his house.

The evidence presented by the defense was directed toward establishing the appellant's plea of not guilty by reason of insanity, and toward establishing the good reputation of the appellant.

In his own behalf the appellant testified substantially as to the same facts as he had related them in his statements to the investigating officials. The appellant on cross-examination stated he had not been mistreated in any manner during his interview with Mr. Curlee and the deputy sheriffs.

Counsel for appellant has filed a lengthy brief in which he argues numerous errors affecting this record.

Counsel first argues the evidence presented by the State was insufficient to show that the appellant's carnal relations with the prosecutrix were accomplished by force and against the will of the prosecutrix.

It is our opinion that the threats by the appellant toward the prosecutrix, testified to both by the prosecutrix and her mother, when taken in connection with the prosecutrix's mental and physical condition and her injuries, were entirely sufficient to justify the jury in inferring that the appellant's nefarious act was...