Underwood v. State, 3 Div. 448.

• Citation: 248 Ala. 308,27 So.2d 492
• Decision Date: 25 July 1946
• Docket Number: 3 Div. 448.
• Parties: UNDERWOOD v. STATE.
• Court: Supreme Court of Alabama

27 So.2d 492

248 Ala. 308

UNDERWOOD v. STATE.

3 Div. 448.

Supreme Court of Alabama

July 25, 1946

Rehearing Denied Oct. 24, 1946.

A. D. Redden, of Tallassee, and John A. Dickinson of Prattville, for appellant.

Wm N. McQueen, Atty. Gen., and John O. Harris, Asst. Atty. Gen for the State.

GARDNER Chief Justice.

The appeal is from a conviction for the offense of burglary in the first degree, as defined in Title 14, Sec. 85, Code 1940 with the infliction of the death penalty. Bass v. State, 241 Ala. 342, 2 So.2d 783; Snead v. State, 242 Ala. 78, 5 So.2d 96.

The indictment contains several counts, some of which allege that the breaking and entry into the dwelling house was with intent to steal. Though there is some evidence indicating an intent to steal, yet it is clear enough the State rested for a conviction upon the theory the entry was made with the intent to rape, and the trial proceeded largely upon that theory. The evidence for the State tended to show that the house, owned and occupied by Mrs. India Rice, a widow 51 years of age, and living alone at 311 Wetumpka Street in Prattville, Alabama, was broken into and entered by cutting the window screen of the kitchen on each side where it was fastened by hooks, thus permitting the screen to be raised to such position as would permit the entry of a human being. The time of the alleged offense was fixed at about 11:30 on Sunday night, September 10, 1945. Mrs. Rice had visitors who remained until 10:45, and then she prepared to retire, taking a bath and coming to her bed in her nightgown.

Before reaching the bed, she turned out the light, which was at the doorway of the bedroom leading into the sleeping porch. The sleeping porch, which she was using as her bedroom, had eight windows, and the shades had been removed preparatory to painting. The furniture in all but the living room had been disarranged for the same purpose. There were three street lights within varying distances from this house, 120 to over 200 feet, one of which shone across the railroad track, which ran within a few feet of the sleeping porch. The evidence is to the effect that these street lights furnish sufficient light by means of which Mrs. Rice could identify some one, particularly on the sleeping porch. After getting in the bed she started to turn off the radio, which was on a stand between the bed and the doorway to the bedroom, and discovered a Negro man, whom she judged to be some two or three inches taller than herself, between 25 and 30 years of age, and weighing some 170 or 175 pounds. He was dressed only in one undergarment, known as a BVD type. Mrs. Rice herself weighed some 205 pounds, and evidently was a woman of poise and courage. Defendant is 29 years of age, weighing about 179 pounds.

The Negro told her he came there for the purpose of raping her. He put his right hand on her throat, with a knife in his left hand threatening to kill her if she made any outcry. She put up what might be well described as a game fight--trying to scratch his face, succeeding one time in pushing him away from her, and all the while insisting that he let her alone. He repeated that he intended to rape her. She was struggling as best she could with his arms around her, and at one time he bit her on the cheek. He also struck her in the eye, and her hand was slightly cut. Finally, however, he overpowered her and threw her back on the bed with her gown up and his body in contact with her person. In a manner not proper to be detailed in an opinion (though clearly set out in the record) this contact evidently gratified his passion, and after throwing the bedspread over her body and pillow over her head, with the admonition that she make no outcry, he left her without a full accomplishment of his original purpose.

Mrs. Rice immediately telephoned the sheriff, who, within a few minutes, came to the house, and an investigation began, the details of which are here unnecessary to relate. Some 10 or 12 Negroes answering Mrs. Rice's general description were arrested and brought before her for identification. In each instance she promptly stated that her assailant was not among them.

Mrs. Rice is circuit clerk and also clerk of the local civil and criminal court at Prattville. Among those paying costs in her court she found the name of John Underwood, and asked the sheriff had he been contacted. John Underwood was brought before her, and she immediately identified him as her assailant. He had a peculiar haircut, closely clipped on the sides and neck, with much hair on top, called by the barber a 'bonton' haircut.

When testifying as to the identity of this defendant she stated positively he was the person--she was definitely certain in her own mind--and she could not be shaken from this firm conviction. She remembered that he had paid some costs in cases in the courts in which she was clerk; and upon going in his presence when being finger-printed, he appeared to be calm, and spoke to her, calling her by name. Defendant admitted on the stand having seen Mrs. Rice in the office, but did not know who she was. There were two abrasions on defendant's face, for which he offered explanations.

As a defense, defendant rested upon evidence tending to show an alibi. He had been for more than 10 years a resident of Prattville, and at this time lived some few houses below what it called the Blue Moon, a...