Wilkins v. State

• Decision Date: 26 March 1940
• Docket Number: 1 Div. 354.
• Citation: 29 Ala.App. 349,197 So. 75
• Parties: WILKINS v. STATE.
• Court: Alabama Court of Appeals

197 So. 75

29 Ala.App. 349

WILKINS v. STATE.

1 Div. 354.

Court of Appeals of Alabama

March 26, 1940

Rehearing Denied April 30, 1940.

Appeal from Circuit Court, Mobile County; D. H. Edington, Judge.

Andrew Wilkins was convicted of assault with intent to rape, and he appeals.

Affirmed.

Certiorari denied by Supreme Court in Andrew Wilkins v. State, (1 Div. 106) 197 So. 81.

Geo. A. Sossaman, of Mobile, for appellant.

Thos S. Lawson, Atty. Gen., and Clarence M. Small, Asst. Atty Gen., for the State.

SIMPSON, Judge.

Appellant a negro, was convicted under an indictment charging an assault with intent to rape upon a white woman in Mobile County, and was by the court given an indeterminate sentence of from eighteen to twenty years in the penitentiary. The evidence for the State tended to show that in the early part of the night, in the City of Mobile, when the prosecutrix was alone, walking toward her home, the defendant overtook her and grabbed her by the throat. There were street lights along the course the prosecutrix was taking, as well as near the place of the assault, and she had occasion to observe the defendant as he walked under one of these lights, before as well as at the time of the assault. When she screamed and struggled with him, he disengaged one hand from her throat and attempted to put it over her mouth continuing to choke her with the other hand. During the course of the struggle and while she was screaming, he apparently became frightened over her screams, turned her loose, and ran, whereupon she fell upon the street. She then went home and made complaint to her husband and to the officers. At the time of the alleged assault, the prosecutrix was carrying a long purse under her left arm, which the defendant, apparently, made no attempt to take. In the struggle she stated that she scratched his face or chin, and, when he was arrested, there was some evidence tending to show a scratch or an abrasion on the defendant's neck and a "pimple" of some kind on his chin. The next morning, after she had given a description of her assailant to the police, the defendant, who resembled this description, was presented to the prosecutrix for possible identification. At this time, she was cautioned by the officers, including the solicitor, to be careful and if there were doubt in her mind as to the identity of the defendant, she should so state. On this first occasion, she failed to positively identify the defendant as the assailant. When he was presented to her that morning, he was dressed differently from the person who assaulted her the night before. She described to the officers the dress of her assailant and as having had on shoes with steel plates on them, she having heard the steel plates striking the pavement when he walked. There were found at his home a shirt and trousers of the description given to the officers, and the defendant, himself, at the time of his arrest, was wearing shoes with steel plates on them. The defendant's brother-in-law, however, claimed to own the clothes. The night following, the defendant with his attorney and others, together with prosecutrix, were taken to the scene of the crime, and there some of the scene was attempted to be re-enacted. The prosecutrix contended, however, that the defendant's voice was not similar to the tone used on the night of the assault, when he had asked her the name of a street just before overtaking her. She still was reluctant to identify the defendant as the one involved. On the following night, the same procedure was undertaken, the defendant being dressed as the one who had assaulted her, and at this time, the tone of his voice being louder, she became positive that he was the person who had assaulted her, and so testified in her examination at the trial. The following morning she notified the police and the sheriff's office that she was convinced that the defendant was the man. During the progress of this identification, it was revealed (or the evidence is easily thus interpreted) that the prosecutrix was exercising great care in making this identification, responsive to the caution of the officers of the law who talked with her and investigated the case. She explained, upon her examination at the trial, that her reluctance to immediately identify the defendant was induced largely by the admonishments of the officers, aforesaid.

Over the objections and exceptions of the defendant, the State was permitted to introduce in evidence that the defendant on prior occasions had made indecent exposures and, with his trousers open, exhibited his private parts or phallus to white girls about the ages of fourteen or fifteen years, while riding along by St. Mary's School and other places on a bicycle. At times these indecent exposures were in the presence of several young ladies and at others only in the presence of one person. There were some of these witnesses who suffered these mortifying exhibitions more than one time. These alleged occurrences were described as having taken place in February and March prior to the alleged assault on the prosecutrix in May. There were five young ladies who gave this evidence and their identification of the defendant at the trial was positive. The basis of the appellant's objection to this evidence was that it was "an attempt to prove a separate and distinct offense unconnected with the present offense, and an attempt to convict the defendant on his reputation for having committed other offenses for which he had not been convicted." After the introduction of the evidence, motion was made to exclude it on the ground that it had "developed testimony of an independent crime, which in order to rebut, this defendant would have to have witnesses to testify to facts, and that he was not prepared to defend this crime." In overruling the objection and motion of the defendant, the court limited this evidence to the question of "identity and intent," and in charging the jury, instructed it as follows: "I want to call your particular attention to this other phase, with respect to other offenses--that the testimony has been presented before you--there has been evidence presented here charging this defendant with offenses of a similar type,--exposing himself sexually before others. That testimony you will not consider in arriving at the verdict of the defendant being guilty. That is not what you are trying him for, whether or not he is guilty in that,--but the purpose of that is only to aid you in determining if this defendant is guilty--what his intent was. Did he intend to commit a rape or did he intend to rob or whatever it was. That is the only purpose of the evidence, or his identity. You may look to it for that purpose, but you must be satisfied beyond a reasonable doubt, otherwise as to the offense,--that is that the offense was committed and that this defendant committed this particular offense. You consider that evidence only for the purpose of aiding you in determining the identity or intent. You must be satisfied before you can convict this defendant under this indictment beyond a reasonable doubt of his guilt."

It might be here mentioned that the trial of this case took place July 26th, and, prior to that time on July 19th, the defendant by his attorney presented a motion to the court to require the solicitor's office to then give the defendant notice as to whether or not he would attempt, at the trial of the case, to make proof of alleged indecent exposures by the defendant at times and places disconnected with the crime of the assault upon the prosecutrix. It thus appears that, if such testimony were otherwise admissible, the defendant was not taken by any surprise in its introduction by the State.

The defendant denied his guilt of the main charge as well as the collateral offenses and introduced evidence tending to support an alibi, to the effect that he was at home on the night of the alleged assault and also tending to show his innocence of the indecent exposures charged against him by the five female witnesses who testified for the State. The defendant was convicted, the jury returning a verdict as follows: "We, the jury, find the defendant guilty with Assault to Rape as charged in the indictment," and upon this verdict the judgment of the court, aforesaid, was rendered, sentencing the defendant.

We consider first the most important question in the case. Was the testimony of indecent exposures (and we might add that the evidence indicates them to have been most revolting) to other white women or girls, at a not very remote time prior to the offense charged, legal and admissible? Or should the State have been denied the right to prove such collateral offenses or conduct as bearing upon the identity of the accused or the crime or upon the intent with which the offense was perpetrated by the accused? It is a well-established common-law rule that in a criminal prosecution proof which shows or tends to show that the accused is guilty of the commission of other crimes or offenses at other times, even though of the same nature as the one charged in the indictment, is incompetent and inadmissible for the purpose of showing the commission of the particular crime charged unless the other offenses are connected with the offense for which he is on trial. In other words, proof of such collateral offenses cannot be used as substantive evidence to establish the guilt of the accused as to the crime charged. 20 Am.Jur., Section 309, [29 Ala.App. 353] pp. 287, 288. Wharton's Criminal Evidence 10th Ed., Volume 1, Section 30, p. 59. This well-established principle of criminal evidence, however, is subject to several, equally well-established exceptions, which include cases where intent or identity is involved. As found in 22 R.C.L.,...