Smith v. State
| Decision Date | 24 August 1976 |
| Docket Number | 4 Div. 345 |
| Citation | 345 So.2d 325 |
| Parties | Danny Lee SMITH v. STATE. |
| Court | Alabama Court of Criminal Appeals |
J. Ronald Storey, Dothan, for appellant.
William J. Baxley, Atty. Gen., and Jack A. Blumenfeld, Asst. Atty. Gen., for the State.
Rape; sentence: thirty years imprisonment.
The appellant was indicted and convicted under the general rape indictment: Title 15, § 259(89), Code of Alabama 1940. The prosecutrix was alleged to be approximately fourteen years old at the time of the incident.
There was testimony presented at trial by relatives of the prosecutrix to the effect that she was retarded and attended a school for retarded children. There was also a statement made by prosecutrix's mother which indicated that a doctor had told her that the prosecutrix had a mind of a two year old. The age of the prosecutrix at the time of the doctor's hearsay pronouncement was not specified. There was absolutely no medical testimony presented as to any mental incapacity on the part of the prosecutrix.
There was substantial evidence presented from which the jury could find the following facts.
The appellant, with permission of the prosecutrix's father, took the prosecutrix on an alleged shopping tour. They were to be accompanied by the prosecutrix's younger brother and sister, however, the appellant would not allow the brother and sister to go along. When the appellant and the prosecutrix returned from the shopping tour, the prosecutrix had a substantial amount of blood on her and her clothes. The appellant had blood on his coat and the prosecutrix was bleeding from the area of her vagina. The appellant fled the premises when questioned concerning the whereabouts of the fruits of the shopping tour.
At trial, Dr. Rufus C. Smith, Jr., testified that he examined the prosecutrix immediately after the alleged rape. There were some slight abrasions around the opening of the vagina. He testified that such abrasions were consistent with the penetration of the prosecutrix's vagina by a male sex organ. Dr. Smith said the abrasions were also consistent with self-manipulation or the utilization of another type of blunt object. The examination did not reveal the presence of sperm.
The prosecutrix then testified on behalf of the State. The relevant portion of her testimony reads as follows:
The preceding facts and testimony have been presented in the light most favorable to the State. The appellant put on evidence, which if believed by the jury, would have explained, controverted, denied and impeached the evidence presented by the State. The appellant made timely and appropriate motions to exclude the State's evidence and for a new trial.
It should be clearly noted at this point that the prosecution elected to try this appellant on the common law charge of rape and not on the 'statutory rape' charge of carnal knowledge of a girl over twelve and under sixteen years of age pursuant to Title 14, § 399, Code of Alabama 1940. In so doing, it was necessary to prove each element of that common law offense, i.e. (a) an unlawful carnal knowledge of a woman by the appellant, and (b) that such carnal knowledge was committed forcibly and without her consent. Title 14, § 396, Code of Alabama 1940.
An essential element of the offense of rape is to prove carnal knowledge by the actual penetration of the female sex organ by the male sex organ. Reynolds v. State, 274 Ala. 171, 146 So.2d 85 (1962). Other than Dr. Smith's assertion that the abrasions were consistent with penetration by a male sex organ, there was not one iota of evidence regarding what was inserted into the vagina. Dr. Smith testified that the abrasions were also consistent with insertion of objects other than a male sex organ.
The facts in Hacker v. State, 31 Ala.App. 249, 15 So.2d 336 (1943) are loosely analogous to those in the present case. There the prosecutrix was seven years old. She testified as follows:
In Hacker, the Court held that whether the penetration was accomplished with a male sex organ was a question of fact for the jury. We, therefore, conclude that the jury in the instant case could fairly infer that there had been a penile penetration.
Other essential elements of rape are that the act be committed forcibly and against the consent of the woman. The instant record is void of any reference to force or lack of consent. It should be noted that in Hacker, supra, there was overwhelming proof of force and lack of consent.
If the prosecutrix was so mentally impotent as to be incapable of consent, then it was not necessary to prove force or lack of consent. It must be proved beyond a reasonable doubt that the prosecutrix was so idiotic as to be incapable of expressing any intelligent consent or dissent, or of expressing any judgment in the matter. The capacity to consent to intercourse presupposes the mental capability to form an intelligent opinion on the subject, with an understanding of the act, its nature, and its possible consequences. Stephenson v. State, 35 Ala.App. 379, 48 So.2d 255, cert. denied 254 Ala. 313, 48 So.2d 259 (1950).
In the present case, the jury could have concluded that the prosecutrix was retarded and attended a 'retarded school.' The jury could also observe the demeanor of the prosecutrix as she testified. The State contends the jury could infer that the prosecutrix did not have the mental capacity required to consent. From the record it is obvious that the prosecutrix did not possess the mental capabilities of a normal teenager. However, if the prosecution will carefully read Judge Carr's scholarly opinion in Stephenson, supra, and the cases therein cited as examples, it will become evident that the State failed to prove either lack of consent or lack of...
To continue reading
Request your trial