Whiddon v. State

• Decision Date: 25 September 1973
• Docket Number: 1 Div. 392
• Citation: 53 Ala.App. 280,299 So.2d 326
• Parties: Ronald Edward WHIDDON v. STATE.
• Court: Alabama Court of Criminal Appeals

Page 326

299 So.2d 326

53 Ala.App. 280

Ronald Edward WHIDDON v. STATE.

1 Div. 392.

Court of Criminal Appeals of Alabama.

Sept. 25, 1973.

Rehearing Denied Oct. 30, 1973.

Donald E. Brutkiewicz, Mobile, for appellant.

William J. Baxley, Atty. Gen., and David W. Clark, Asst. Atty. Gen., for the State.

BOWEN W. SIMMONS, Supernumerary Circuit Judge.

Appellant was indicted in Mobile County for violation of Title 14, § 326(2), Recompiled Code 1958, which, omitting the penalty, reads as follows:

'It shall be unlawful for any person to take or attempt to take any immoral, improper, or indecent liberties with any child of either sex under the age of sixteen years, with intent of arousing, appealing to, or gratifying the lust or passions or sexual desires, either of such person or of such child, or of both such person and child, or to commit, or attempt to commit any lewd or lascivious act upon or with the body, or any part or member thereof, of such child, with an intent of arousing, appealing to, or gratifying the lust or passions or sexual desires, either of such person or of such child, or of both such person and such child. Provided, this section shall not apply to the enumerated acts where the purpose of the person committing such act or acts is to render medical or surgical treatment, or when the persons are married legally one to another.'

He was sentenced to three years imprisonment in the penitentiary following a jury verdict, in general terms, of guilty as charged in the indictment.

It appears that the indictment follows the statute, supra, and embraces a charge that the defendant attempted to commit the offense embraced in the statute, supra.

We note here that there was a total absence of evidence that the defendant consummated or committed the offense other than attempt. Under such circumstances, the jury verdict not having specified the offense, is referable to the offense in the indictment that is supported by the evidence. Flandell v. State, 31 Ala.App. 520, 19 So.2d 401; cert. denied, 246 Ala. 122, 19 So.2d 404.

The issue present in the trial court and here is whether or not the evidence of the state (the defendant did not take the stand or put up any witnesses) was sufficient to support the verdict that the defendant was guilty of an attempt as charged in the indictment and prohibited in the statute, supra.

It appears from the evidence that the prosecutrix, a female child nine years of age when the alleged offense occurred on or about January 27, 1972, was riding her bike in the town of Semmes in Mobile County, when, on Church Street near her home, she was stopped by the defendant who was riding in an automobile, and asked if she had seen his Chihuahua dog. She gave him a negative answer. Then he said 'Would you ride down here on your bike and see if you can find him,' and 'so I rode down there and I didn't see any dog and I told him, and when we got to this church, I told him I didn't see any dog and he got out of the car and he said there was a church and then there was a little area, then there was an old parsonage (a vacant house).'

'And he said, 'You go around this way of the church and I will go around that way.' So, he met me there and we couldn't find him, so, you know, the church and then the parsonage, there was a little play area in there, and he said, 'Let's play hustle,' and I said, 'I got to go home,' and he said, 'Oh, it's fun. Let's play.' And I said, 'Well, I got to go home,' and he said, 'I'll show you how to play,' and he said somebody get on base and you run around and you tackle them, and I said, 'Well, I got to go home,' and he said, 'Well, we'll get my sister and we'll go and play,' and I said, 'Well, I got to go home,' and I rode off on my bike.

The witness further testified that she had seen the defendant a few times before; that he never told her the dog's color or name; that after reaching the back of the church the defendant invited her several times to 'play tackle', but she refused and rode off on her bike for home. At no time did the defendant put his hands on her or attempt to do so.

Over defendant's appropriate and timely objection another female child ten years of age was permitted to testify as to her experience with the defendant in the same locality at which time she was nine years of age. This experience occurred on the same day as that of the instant prosecutrix, namely, January 27, 1972.

This witness testified that while she was riding her bike and had dismounted therefrom to retrieve some coins she had dropped on the ground, the defendant came by and wanted to know if she had seen his dog. The witness gave a negative answer. At the defendant's invitation, she followed him down one road and then another. She then told him she might have seen it back down the road, but he did not go in that direction. He went in the direction of an old empty house. He asked her to get off her bike and follow him into the old house to see if the dog might be in there.

Once inside the old broken-down house, he wanted to play a game; it was hustle. After picking a room in which to play the game, the defendant explained how it should be played. He said it was like a base, 'he chases you and when he catches you, he gets you down and--that's all.' The witness further testified that they were not in the room very long when some men came walking down the road working on some lines. She testified that she then escaped through a window, mounted her bike and went home. The witness said the defendant never touched her nor did he say anything nasty to her.

In order to constitute an atttempt to commit a crime, certain factual elements must exist. In De Graaf v. State, 34 Ala.App. 137, 37 So.2d 130, we quoted approvingly from Broadhead v. State, 24 Ala.App. 576, 139 So. 119 as follows:

'An attempt to commit a crime consists of three elements: (1) The intent to commit the crime; (2) performance of some act toward the commission of the crime; and (3) the failure to consummate its commission. In other words, in order that there may be an attempt to commit a crime, whether statutory or at common law, there must be some overt act in part execution of the intent to commit the crime, but which falls short of the completed crime; the difference between attempt and commission being that the act or step fails to produce the result intended.

'A criminal attempt to commit a crime consists of two important elements: First, an intent to commit the crime; and, second, a direct ineffective act done towards its commission. It follows that a failure to consummate the crime is as much an element of an attempt to commit it as the intent and the performance of an overt act toward its commission; and, where a crime has been actually committed, the second element or ingredient of an attempt is necessarily lacking, and a prosecution or conviction for an attempt to commit a crime could not be sustained for this reason.'

Cases of similar import are collated in the Alabama Digest, Criminal Law, Vol. 6, k44.

A pivotal question is whether or not the enticement as shown by the prosecutrix's evidence, supra, amounted to an overt act.

As to when the conduct of a defendant charged with attempt to commit a crime amounts to an overt act is illustrated in Groneau v. State, Fla.App., 201 So.2d 599, 603, wherein it is said:

'Mere intention to commit a specific crime does not amount to an attempt. Preparation alone is not sufficient. Something more is required than mere menace, preparation or planning. The attempt is complete and punishable, when an act is done with intent to commit the crime, which is adapted to the perpetration of it, whether the purpose fails by reason of interruption, or for other extrinsic cause. State v. Wilson, 30 Conn. 500, 506; State v. Enanno, 96 Conn. 420, 427, 114 A. 386. The act must reach far enough towards that accomplishment of the desired result to amount to the commencement of the consummation. There must be some appreciable fragment of the crime committed and it must be in such progress that it would be consummated unless interrupted by circumstances independent of the will of the attempter. It is not, however, essential that the actor would have actually succeeded if he had followed the course of conduct upon which he had embarked. State v. Mazzadra, 1954, 141 Conn. 731, 109 A.2d 873. 1 Wharton Criminal Law, Attempt, § 224 (12th Ed.).'

The 'preparation' for commission of an offense consists in devising or arranging the means or measures necessary for commission of the crime, while an 'attempt' or 'overt act' is a direct movement toward the commission, after the preparations are made. State v. Quick, 199 S.C. 256, 19 S.E.2d 101, 102, 103.

'An...