41 Ga. App. 577 | Ga. Ct. App. | 1930
Carlton Brittain, colored, was convicted of assault with intent to rape on a white girl, and excepts to the overruling of his motion for a new trial which is based upon the general grounds only. Counsel for the defendant insists that the evidence did'not sustain the verdict, because the defendant established an alibi and because no intent to rape was shown. .
The female alleged to have been assaulted positively identified the prisoner, and the jury believed her. She testified: “lie is the same one who pointed a pistol at me. He is in the courtroom, that is him (pointing to the defendant). . . Yes, this is the same boy; I am positive of that.” Witness Eoss testified: “I got a good look at him under the light, and am sure that he is the same one.” Witness Howland testified: “The boy we met [immediately after the alleged assault] had on overalls, cap, and overcoat. The boy Mr. Smith [the officer]' caught was dressed the same way.” In addition to the positive identification of the witnesses, and the clothes corresponding, the girl swore that the defendant had a pistol when he assaulted her, and the officer swore that the defendant had a pistol when he caught him less than two hours later. Furthermore, the alibi sought to be established by the defendant was by no means complete. Harden, a witness for the defendant swore: “I drive an ice-wagon for the Atlantic Ice & Coal Corporation. This boy worked with me regularly every day. The last day he worked for me was on a Friday; he left the wagon about 5:30 o’clock in the afternoon, and I never saw him again until just now.” Adams, a witness for the defendant, swore that the defendant was in a picture show, came out to get a sandwich about 5 :30 o’clock, and went back in the show and staid an hour and a half; that “he could not have been driving any ice-wagon around 4 o’clock. . . It was on a Friday night.” Tlie jury evidently believed that the defendant could not have been in the show and on the ice-wagon at the same time, and believed the witnesses who positively identified the defendant, which was their right. The burden was on the defendant to sustain his plea of alibi to the satisfaction of the jury, and this he failed to do. Ware v. State, 67 Ga. 349.
From the evidence adduced the jury were authorized to find that the defendant had the intent to commit the offense. The girl testified in part as follows: “I am 16 years old. On the night of
In Watkins v. State, 68 Ga. 832, it was held: “Where a man hailed a woman walking along a pathway, and, holding something-in his hand and saying he had plenty of money, told her to go into a gully, and on her retreating drew a pistol, and advancing upon her, ordered her to turn back, and she escaped by flight, a verdict of assault with intent to rape, approved by the presiding judge, will not be set aside as unsupported by evidence. . . The fact of proximity of a house and public road to the scene of the transaction may have rendered the effort fruitless, but did not render it guiltless.” Where the evidence shows that a 16-year-old white girl is alone and unprotected on the street at night, and a colored boy of approximately the same age steps in front of her, stops,
The evidence authorized the verdict, and the court did not err in overruling the motion for a new trial.
Judgment affirmed.