Appeal
from General Sessions Circuit Court of Hampton County; Robert
E. Copes, Judge.
WOODS
J.
The defendant appeals from a conviction and
sentence under an indictment charging that the defendant on
the 30th day of May, 1911, "in and upon one Mrs. A
James, in the peace of God and of the said state then and
there being, did make an assault, and her, the said Mrs. A
James, then and there did beat, bruise, wound, and ill-treat,
with intent her, the said Mrs. A. James, violently and
against her will then and there feloniously to ravish and
carnally know, and other wrongs the said Mrs. A. James then
and there did, to the great damage of the said Mrs. A. James,
against the form of the statute in such case made and
provided, and against the peace and dignity of the
state." The statute of 1909, under which the indictment
was found, provides: "Section 1. Be it enacted by the
General Assembly of the state of South Carolina, that any
person convicted of rape or assault with intent to ravish
shall suffer death by hanging, unless the jury shall
recommend to the mercy of the court, in which event the
defendant shall be confined at hard labor in the state
penitentiary for a term not exceeding forty years or less
than five years, at the discretion of the presiding
judge." 26 St. 206.
The
question made by the appeal is whether the circuit judge
should have directed a verdict of acquittal on the ground
that there was no evidence of an assault by the defendant on
Mrs. James. It seems important to set out the entire evidence
bearing on the question. The prosecutrix, Mrs. James, is a
white woman living in the town of Brunson. The defendant is a
negro. Mrs. James' testimony as to defendant's acts
is as follows: "Q. State the circumstances under which
you saw him and what occurred at that time. A. I was sitting
out on my porch at good dark, and some one came up and says,
'Good evening, Mrs. James,' and I said 'Good
evening.' He said, 'Minnie Fields sent me down here
for 50 cents,' and I got it and gave him the money, and
after taking the money he backed himself out in
the shade of the house and propped himself on the balustrade,
and asked me if my husband was at home. I asked him, 'Who
are you?' and he told me his name was Son Best, and he
said, 'No; not Son Best, Reverend Best.' Q. Was there
a Reverend Best around there, if you know? A. Yes, sir. I
said: 'No; my husband is not here; what do you want with
him?' He said nothing, and he said, 'I want to ask a
favor of you,' and I said, 'What is it?' He said,
'Nothing much, but I am kind of afraid to tell you,'
and I said, 'I cannot accommodate you unless I know.'
He said, 'I would like to see you in the room a
minute,' and I said, 'Wait a minute.' I stepped
in the hall, and got the pistol, and fired out at him three
times. Q. Do you know whether you hit him? A. No, sir; I
don't think I did, very much to my regret. Q. You said he
was in the shadow of the house? A. The door was open, you
know, and the light from the hall shone out in front of the
house. Q. Did you see any one else with him? A. No one at
all. Q. When he came up and said something about the money,
where was he standing? A. Standing at the gate. Q. How far
from the steps or piazza? A. I suppose eight or ten yards. Q.
How far? A. About as far as from me to him (indicating man
sitting near clerk's desk). Q. After you gave him the
money, where did he go? A. He came up the steps, and I handed
him the money. Q. How near were you sitting to the steps? A.
He could have put his hand over the balustrade and touched me
if
he had tried. Q. How near was he to you? A. In two feet. Q.
When he took the money, did he come around there in front of
the steps? A. No, sir; when I handed him the money, he backed
right in the shade of the steps. Q. How near was he to you
then? A. In about two feet of me. He could have very easily
put his hand over the balustrade. He made no attempt to put
his hand on me, though he did not have any good
intention."
J. M.
Sullivan, the town marshal, who arrested the defendant,
testified as to defendant's statements: "Q. Did you make any threats before he made that statement?
A. No, sir; I assured him that he would not be hurt. We told
him we were there to protect him, and he came out and told us
his intention was to go there and have intercourse with Mrs.
James. He said afterwards that another fellow was with him
that same afternoon or night. Q. Did he say who that was? A.
Yes, sir; he said his name was Ham Sanders. We found out
afterwards that that was false."
Magistrate
Dowling testified as follows on the same subject: "Q.
Did he make any statement in your presence? A. Yes, sir. Q.
What was that? A. He stated to myself and Sullivan together
that he and another negro had had some talk that afternoon
before the occurrence, and they had agreed together to do
what he did. At first he said he made up his mind to go
around there, and did go there, and told Mrs. James he wanted
her to do a favor for him, and she asked him what kind of a
favor, and he told us that he told her to go to bed with him.
Q. Did he say what was his intention? A. His intentions were
to go to bed with her."
The
evidence of an intent to commit a rape was the approach to
Mrs. James under false pretense, the inquiry whether her
husband was at home, and the improbability that even the
madness of lust could have led the defendant, a negro, to
expect to accomplish his purpose without violence. On the
issue of intent, therefore, defendant's counsel very
properly conceded that there was evidence for the
consideration of the jury.
The
demand or solicitation by a man that a woman should submit to
sexual intercourse with him, with the intention to enforce
his demand by violence, is a heinous moral offense against
society. But the General Assembly has not seen fit to make
such a demand with such an intent a crime, unless accompanied
by an assault. If there be a deficiency in the law in this
respect, it calls for the exercise of the legislative, not
the judicial, power of the State .
The
term "assault" is a very ancient one in our law,
and its meaning has been long settled. The holding that the
acts of the defendant constituted an assault was not in
accord with the common understanding of the meaning of
assault, nor with the law as established by the courts. Not
only do the facts fall short of the definition of assault,
but we do not think a single case can be found where a court
of last resort has decided that similar evidence would
support a verdict of assault with intent to ravish. The
essence of judicial authority on what is necessary to
constitute an assault is thus given in 3 Cyc. 1020: "An
assault is any attempt or offer, with force or violence, to
do a corporal hurt to another, whether from malice or
wantonness, with such circumstances as denote, at the time,
an intention to do it coupled with a present ability to carry
such intention into effect. *** Mere preparation to commit a
violent injury upon the person of another, unaccompanied by a
physical effort to do so, will not constitute an assault; but
there must be an attempt or offer, though interrupted--the
commencement of an act which, if not prevented, would produce
a battery. *** The force or violence attempted or offered
must be physical, and no words, of themselves, can constitute
an assault." In State v. Davis et al., 1 Hill,
46, assault is thus defined: "The general rule is that
any attempt to do violence to the person of another, in a
rude, angry, or resentful manner, is an assault; and raising
a stick or fist, within striking distance, pointing a gun
within the distance it will carry, spitting in one's
face, and the like, are the instances usually put by way of
illustration."
The
case of State v. Sims, 3 Strob. 137, is relied on to
sustain this conviction; but it strikingly illustrates the
difference between the attempt or offer to do violence to
another necessary to constitute an assault, and the absence
of such attempt or offer in this case. In that case the
defendant and the prosecutor had a violent quarrel in the morning. Later in the day the defendant
"turned his horse across the path before the prosecutor
and then shook his hickory over his head, in striking
distance. He rode his horse twice very near to the
prosecutor. The third time he rode nearly upon him. The
prosecutor said, 'Don't ride upon me,' and,
thereupon struck the horse with his jacob staff on the neck.
The horse fell on his haunches. The...
