*1 John Arthur Hale v. Tennessee. State December
(Nashville, Term, 1954.) Opinion May 6, filed 1955.
46.4
Z. Alеxander Nashville, and H. T. Looby, Lockard, plaintiff. Memphis, Assistant Nat for the Tipton, Attorney General, State. Swepston Mr. opinion Justice delivered Court. tried and defendant convicted for indicted, upon a child under battery
assault of 12 age *4 to her with intent know and the years carnally punish- at appeals. fixed death from which he ment A statement the facts follows :(cid:127) —'The brief child was the time of the assault and the old at defendant years was 19 negro, years is a unmarried young age, who one child to father of his testi- according but the own mony. day On the 17th the defendant October, 1953, negroes cutting and some other were sod in a field in part Memphis the south near what is known as Non girl Connah The bottom. little on whom assault and battery boy was committed and a little about the same age picnic intended to in have distance field short mid-day. down area below the of their After homes about gone had down into that area the defendant suc- luring away companion girl in ceeded the little from her young boys and from the observation of four other who playing vicinity, by were his continued insistences turtle; going that he to show her a was he succeeded having nearby grass her follow him into some tall there committed the crime. getting
The child testified after he succeeded high place, her out into the weeds in a secluded he com- pelled her her to remove her down underwear, made lie ground on the and assaulted her three and after- times compelled wards he released her he her to let him before very girl kiss her in The little lascivious manner. testi- fied was confirmed the medical examina- which also, very shortly vagina that her not tion had was thereafter, contrary penetrated her but to the anus.
Shortly after the commission of this and on the crime plaintiff Memphis, left afternoon went same Arkansas, apprehended by later where he Detroit, brought a Federal warrant and I. on back F. B. Memphis. he did defendant’s defense not molest away point any way, that he from
child in enough long have committed the act and of work away only time that he was from work from in fact the shortly quit morning early until all of the sod-cutters *5 466 one
after lie in a car with another noon, was when went negro get of the a workmen to soft drink. preponderance thе
There is no need to the of discnss proof overwhelming evidence the is to the effect because guilty charged. that he was as complains assignment The 13th of error of the over- ruling al- of a trial in it was his motion for new which leged jury could that there was no on which the evidence charged guilty the find the defendant the offense It is showed indictment. said the State’s evidence only against a the commission of crime nature and that an there was no intent to have carnal knowl- evidence edge girl. of the little solely
This insistence is based on fact that de penetrate vagina. The fendant did the anus and not the point simply testify at defendant did not on this all. He any having denied molested the child manner. Under indictment under this section guilty gravamen of the intent is the Code, 10785, charge In consummation of the intent. Carter (2d) this State, 259, 181 Tenn. 181 264, 137, 138, v. S. W. : Court said charged is not actual commis- “The offense
nn might de- which include different crime, sion of charge grees of an other but is assault offenses, specific single It intent to commit offense. with intent with which the assault is committed is the only gives The intent the offense. constitutes character. The intent forms the its felonious assault (cid:127)gist constitutes and where the intent offense, proved. Law, it must be 1 Cr. offense Whar. (Jones State) 2 v. Swan 399.” 1279; sec. n accomplish purpose his is did not that he The'fact or not harbored of whether determinative no means
467 any along simply a with tlie intent fact to be taken but 382, Tenn. other In 378, evidence. Brown v. State, violating (2d) conviction 672, S. W. said: same stаtute was sustained where Court ‘‘ pushed there- her down on one the beds He *6 conclusively upon certain acts disclosed did which carnally her. then and there know intention to being struggle escaped without a brief After she immediately drug then re- store, went to the harmed, hap- had home told her mother what turned ’’ pened. (2d) 195,
In 186 Tenn. S. W. State, 198, Davis v. page, opinion paragraph that cites last on 7, child, Shaw, 134 Mass. where v. Commonwealth fell her hands on floor on thrown defendant when child was that that the it was held the fact and knees; impossible penetration placed position a in such charge intent to a with no to assault defense carnally know her. have intent in this we case,
Now to evidence as picked place, out faсt that the defendant in the first boy avail- when there was little female as his victim only if had his intention involved time, at same able proof sodomy against nature; crime boys playing four other that there were also showed girl general little testified area. Instead, same play- suggested her that she and man that the colored way up go split and one the one one Charles, mate, 193), 188). (R. Again child testified as (R. other follows: say plainly. did he out What talk Now,
“Q. boys did you ? He me if ever time A. asked at that anything to me. say? you they
“Q. What did A. said were no, I perfectly hoys. nice you anything
“Q. Did he said, ask else? A. I you ‘I don’t understand mean,’ said, what and he ‘You know.’ I ‘I said, still don’t understand,’ * * ‘Like said, V you Talk “Q. as loud as ‘Like can. A. He said pulling your panties,’ down don’t like do ‘No, I ’ that and never dо talk about it. say you? anything
“Q. Did he else to He told A. me that he’d like to do it, I well I became , said— frightened I and was scared and he said he’d like to
do it. He said he’d
“Q. like do A. it? Yes. say you? “Q. did he then What asked A. He me if I wanted to do it him with and said ‘No sir;’ I might looking I ‘mother said, had me,’ I *7 go better home. ‘‘ say you you Q. did What he when told him had go go better home? A. He told me I cannot ‘no, home and I can’t—. you anything? right Did
“Q. he tell to do Not A. then. right. began get frightened
“Q. All real A. I to just and I was I was so scared that I couldn’t scared, nothing. do happened? right, All then what He told
“Q. A. pull pants my me off and I said that would- ‘no, I go n’t and he told me to if I didn’t it;’ on, do he was going to choke me. you pull pants? your Did off
“Q. A. Yes, I sir, anything just going scared as and was to do I he what said. yon yon
“Q. Then did tell to do after what he pnlled lay yonr pants оn He me to down ? told off A. gronnd that to do told him didn’t want and I I going to me told me if I he was choke he didn’t got and I scared— ‘‘ yon yon he Did believe him when he told Q. going yon? scared. sir, to choke A. Yes I was people yon know. Yon tell don’t can’t abont other — ‘‘ yon lay gronnd? sir. Yes Q. Did down on the A. unbut- Well, Then did he what do? A. “Q. he ding- pants call a what we toned his and took ont dong. right? part person, is that That is his
"Q. A. Yes sir. got He do, And he Linda? A.
“Q. then what did pnt top it me in me. on pnt body? yonr inside A. Yes. He it
“Q. my In back.
"Q. A. Where? yon yon call number what where do "Q. Is two? Yes sir. A. yonr with legs? do did he What Where were
"Q. right nothing yonr legs? then. Well, he didn’t do A. finally pnt pnt my legs them his over and he I down and he held them.” shoulders her in after he had abused
Then the child testified go bathroom had to she anus she said told her to hold go weeds, then into told her to making sort of up submit hеr her After dress. go altogether, ont started three times treatment *8 kissing him in her he on insisted weeds when of the tall my tongue in wiggled around his and "he the month way.” month some that he fact the taken with
The above evidence person at female of another begotten a on child the had 470 previous any of
some in absence evidence time, and the perverted jury of sex think the was warranted we habits, finding that committed the assault the defendant battery on sexual inter this child with the intent to have knowledge of her her, course with that is to have carnal changed but for the that some reason his mind to extent just an on her could as well committed act that he person. have committed on a male very authority that For further clear to the effеct accomplish original purpose, or an aban- failure to the nullify original purpose, donment of the not does original McEwing guilty Tenn. State, intent. See: v. esp. seq., 649, 688. 656-657, et S. W. assignment We, therefore, overrule No. 13. complain Assignments 11 and 12 of refusal of de- special requests jury that fendant’s to the first, effect battery committed must find the assault and were knowledge with the unlawful carnal intent to have enough, that it intent would not be to find he had the to enter rectum, second, commission battery purpose any an assault and for other punishable under the indictment this case. charged jury language Court Code under which the indictment was
statute, Sec.T0785, language relating also in the to the laid; Section 10781 punishment rape; also the two lesser offenses of an attempt felony battery, to commit assault and charge explained they and later on the to the how proceed should to first determine whether or not de- charged guilty fendant was offense and if then not, next in order the two lesser offenses included within indictment. proceed charged
He toas how should to fix then
471 they punishment the according find should the to what guilty of. defendant to he charge given full and “suffi as
We think the special requests giving would cient and the of these that by probably jury over-em have tended to confuse espe penetrate phasis the anus; on the fact he did cially incom commences with the second one which plete meaningless. sentence that is accordingly
Assignments 11 are overruled. and 12 complain Assignments for the that it was error 1 and jurors Judge case on the Trial to hold that the 12 who sat accept competent require the defendant were and to having protest, exhausted them his the defendant over challenges, dire it said that on the voir all his because Attorney jurors 'General stated of said examination jurors of the case would what the facts in advance to pledged jurors said statement of facts and on such be, guilty to fix the defendant’s to render verdict pro- Briefly, punishment death electrocution. at Attorney part of Assistant General cedure on the he called the facts, of what brief statement that he made is, just case was about, of what the a bare statement paragraph then read Code statemеnt; he Sec. a nine-line then read he laid; the indictment was under which 10785', rape punishment for with reference Section applies offense convicted of the if accused is which provides That section was indicted. for which provided penalty electrocution, death shall be convicted was tried and the defendant whom before punishment proper, for may commute think if penitentiary imprisonment life in the offense years. period than 10 of not less or for proceeded follows: as then He
“Now Gentlemen, this case the is de- State manding penalty the death and will ask I each of yon individually, yon capital punish- do believe proper ment in cases ?
“Mr Gresham —Yes. “Mr. Smith—You do—Mr. Gresham? Yes. *10 proves “Mr. guilty Smith —If the State man this charge given you by this offense, under the you Court would vote to convict him and fix his punishment at death electrocution?
“Mr. Gresham —'Yes.” Substantially, the same method of examination was fol- Attorney lowed the Assistant General and subse- quently by Attorney General in the examination of prospective jurors. other may may
Whatever defect
have existed
method of examination on the voir dire, we need not now
subsequent proceedings.
decide because of
accepted
When the State had
the entire list of
prospective jurors, counsel for defendant moved
disqualified
entire list be
for cause, which motion was
challenge
overruled. This motion
in was,
effect,
array
quash
panel
prospective
or a motion to
jurors,
writing,
but since the same was not in
the de
complain
part
fendant cannot now
of error on the
of the
overruling
History
Court
the same. Caruthers
of a
(Gilreath),
Lawsuit, 7th
citing
ed.
Sec. 325, Note 68,
State,
Mahon
Cooley
v.
Counsel for defendant then examine jurors eventually accepted jurors per- he five per- emptorily challenged eight leaving him more seven, emptory challenges. until de- Examination continued accepted peremptorily jurors fendant three more challenged leaving challenges. him four Pro- four, such accepted ceeding jurors challenged two further, accepted leaving challengеs. him one two, two He then finally peremptory and excused one, and exercised his last challenge. fully juror Then the 12th and he was called qualified proper juror aas to sit on the case and thus up. was made complaint assignments
A further under two these challenge is that the overruled Court cause his jurors accepted. five whom as defendant, above stated, complaint appears no We see merit as because, having from the above defendant at that statement, time eight peremptory challenges which he could ex have ercised but did not do so. complaint assignments
A further under these having challenges all exhausted his before *11 juror required 12th was defendant ac examined, was cept him. There is no merit in contention, this because juror competent. clearly State, the 12th was Mahon v. by having- 127 Tenn. If of 545, 156 S. 458. reason W. 535, peremptory challenge been forced to exhaust his on some competent incompetent jurors, allegedly erroneously held by Judge, accept the Trial he had been forced to subse quent incompetent question jurors, a different be would presented. supra, page Mahon v. at State, 127 Tenn.
Assignments accordingly 1 and 2 are overruled. assignments The 3rd and 4th of error out of the arise regard action of the Court introduction of a the hospital wholly handwriting record made in the of Dr. physician attending girl Gilbert, the the little imme- tragic diately incident. The this after the occurrence of history report pаragraph the first of this consisted of given physician follows: and read as the case as to the playing 8-year-old an who was “P. T. is F.W. 19-year- grass tall some with other children when away group attacked old M. took her from the C. her.” report paragraph a statement of the
The second physician. findings examining of the of the complaint assignment that the the Under three not introduce ruled the defendant could Court part introduce must alone, latter of the record but in that he Defendant insists wanted entire record. physician findings only of the record of the troduce impeachment physician. purpose For of the for the assignment. First'— n is no merit this two reasons there hospital custodian not introduced record was by agreemеnt and defend between State but thereof, partic specifying agreement ant’s counsel necessarily agree part would same, ular of the Secondly con is no the whole. ment introduce —there testimony inconsistency of Dr. between the tradiction or testi and who introduced the State who was Gilbert, hospital than from the rather from his recollection fied hospital the defend hence itself, record and the record, prejudice. no ant suffered complains de- assignment that when
The fourth Spears, of the hos- custodian, Miss called fendant pital on cross-examination State record, paragraph her read the first to have allowed witness, history hearsay hospital record which was *12 given to the doctоr. case the history containing paragraph the first
If this person by given undisclosed the some to doctor case as the hearsay, be conceded to be its introduction evidence prejudicial was to the defendant for the reason very history purported appearing same said facts amply proved by of the were case, more, State by prejudice other have so that no could witnesses, resulted. assignment accordingly
The fourth overruled. complains assignment The fifth of the of error allowing action of the Court in this child the mother of testify to as she condition of the child’s rectum as days observed it few trial was about before the which injury. it five months after If be the occurrence of the by was concеded, as insisted that this evidence defendant, hardly too it could be said to remote, nevertheless, prejudicial testimony for the reason that the doctor’s hospital report and the showed condition imme diately injury at after the than to be much worse it was assignment mother there is, the time the testified. The fore, overruled. predicate assignments for the sixth and seventh
is the fact that defendant fled state on the same night day alleged crime was afternoon and then to De- committed and went first to Arkansas he was arrested under Federal warrant troit, where by authorities, the Federal and returned the state by statement Sullivan, and when arrested witness assign- him Under the sixth was taken from Sullivan. complained it error for Court ment it is that was and answer Sullivan to be asked allow witness following: here Federal or he returned State
“Q. Was By authorities'? A. Federal authorities.” incompetent testimony that said It is insisted purpose purpose any and that obvious *13 show that A defendant refused to waive extradition. assignment sufficient no answer to this is that there is evidence in record to that defendant did refuse waive inter extradition; was not allowed to State rogate point. on that assignment complains
The seventh was Sullivan ques- following allowed to be and to answer the asked, tion the State: any during your At
“Q. time inter- the time of rogation say did he whether or defendant, girl neighborhood not he saw little white of South 'Wall Street Fairlawn Subdivision?” complaint question leading- The is that said ’ suggestive alleged and that the witness аnswer contained damaging admissions. question
The Court ruled that the was not leading. The has a Court wide discretion reference with questions clearly to whether or not to allow that are leading question can unless this Court see only clearly leading clearly prejudicial, was not but action of will not be Court interfered with prejudice by any possi no could Court; have resulted bility testimony here because addition to the of other (R. 306) defendant himself admitted that witnesses, girl. assignment he had seen the little The seventh accordingly overruled. complains eighth assignment that the re- Court
fused to allow defendant’s counsel to ask the defendant following questions, refusing jury to allow the questions, to the answer hear of the defendant to said which were as fоllows: you anything Had Inman
“Q. Mr. said about cutting sod there? Don’t tell what he said if he said anything. per- anything A. he never said Well, sonally my cutting me abont sod but talked to nncle about it.” complaint question and
Tbe basis of tbis is that said competent defend- answer were to sbow tbe relevant regard flight tbe from ant’s state mind witb bis State.
Tbe was excused from the while Courtroom permitted defendant’s counsel him fur examine *14 although opportunity having ther to do so, tbis but, anything, if counsel failed to show what Mr. Inman said, except cutting about them to cut that he did want sod, anybody already it testified but him. Defendant had they (B-.307-308) objection orders that without had prosecuted they caught trespassing would be if were away way. he ran in that Defendant had also testified that appeared him two men had and told because white assignment is overruled. “Halt.” The complain Assignments al of the nine and ten overruling leged in ob error of the defendant’s Court Attorney jections cross-ex to the Assistant General’s repetitious questions by by amination of defendant alleged brow-beating defendant. carefully find no record have examined the
We assignments, and the same are two in these merit overruled.
Assignment a there is fourteen to effect proof indictment and between the variance material assignment reasons as for the same is overruled supra. thirteen, assignment of error is to and last
The fifteenth overruling in the defendant’s erred effect that Court alleged jury con- it is a trial because for new motion by properly during its en- deliberаtions itself ducted possibility prob- regarding speculations gaging in ability parole as shown the case of life sentence, jury the return of the to the about 30 Courtroom question retiring following minutes after asked of the Court: jury
“Q. Your like to know Honor, we the would regard- if we can have information from the Court ing length of time man must before serve ’’ parole granted if a ? life sentence is recommended replied: To which the Court only
‘‘Be instructions that seated. Gentlemen, your jurors cover actions as are embraced you possession. charges your which written have please, your Retire room.” upon Defendant further the affidavit made relies Looby, in his Z. Alexander which he counsel, stated discharged the said that after the had beеn he, Looby, talking juror, Rogers Sanders, saw one W. newspaper reporter say juror and overheard the jurors giving had decided on the defendant sen- imprisonment, jurors made but one of the of life tence *15 paroled in defendant would be that the the. statement again years eight streets, would be back on the or nine and jurors changed their statement a of which as result to be elec- sentence the defendant to verdict and voted trocuted. can be of the action of is or made
No criticism strictly accord it was in in this case because the Court ruling State, Tenn. 515, 517, in Porter v. 177 with the (2d) 171. 151 W. S. by in Court on the reversal Wil- relies
Counsel (2d) 234 where 456, 993, Tenn. S. W. State, 191 liams v. improperly erroneously Judge and undertook Trial inquiry jury. respond from the That case am to such to (cid:127) aid to counsel. no is of upon really being act
What we are asked to do is to juror the affidavit of counsel that he a make overheard newspaper reporter an unsworn while statement to juror any jurors to counsel has not called this or other testify improper any alleged conduct under oath as to supposed place taken to have the deliberations may jury. juror of the The circumstances under which may not examined with reference to the verdict fully are set Lee 116 S. 521, out v. Tenn. State, W. 881. refusing Trial in error in Court meager grant a
set aside the new trial on this verdict showing. proceedings
Finding in the below, no errors reversible judgment the Trial is affirmed. The defend- Court prison ant transferred to the whеre is ordered State into electrocution will he carried sentence of death day August, as the law directs. effect on the first dissent. Justice, Chief Justice, Neil, BurNett, Neil Mr. Chief Justice (dissenting). opinion respectfully majority from as to
I dissent qualification ruling’ and em- the trial court jurors. paneling think it error for I was reversible Attorney permit the District state the court to G-eneral expected prove prospective jurors as what he evi- dencing guilt then ask each of defendant, imposing they agree to return verdict would them of jurors penalty. It is true some of the the death that whether or not would voir dire on their stated depend upon to death would defendant sentence regard- charged But court. the law as facts prospective the examination of I feel less of this *16 only prej- highly not by counsel was jurors the State’s unlawful. but udicial the and both clerk, called the case was
When ready, announced counsel State and the defendant’s Attorney court as fol- District General addressed the prospective jurors (There then twelve lows: were dire). jury on their box to be examined voir please, gentle- your If Honor “Mr. Smith: morning jury, trial this have for men of the we Arthur John of Tennessee versus case of the State charged indictment, in the seated he is Hale, here; battery on a female gentlemen, with the assault years age intent of twelve with under the carnally know her. briefly in the gentlemen, are that the facts
“Now, shortly morning noon on before middle little Saturday, took this defеndant 17th, October Killingsworth Kay at that time was who Linda eight years Street, at old and lived 2993 South Wall Bottoms, out close to the Non Oonnah Lamar, off into Bottoms the Non Connah her down into he took raped her. at which he there, area time some wooded rape proof you com- will show in her rectum.” mitted which Code, of the official read Section 10785
He then battery intent provides with assault years carnally age under the of twelve female know rape. punished He then read as case shall be rape, punishment prescribing wit, for statute may provided “if electrocution death punishment proper think for offense commute penitentiary imprisonment or for a life in the years.” period ten than less demanding the the State stated then He juror if be- penalty individual asked each death *17 capital punishment. question Following lieved in he asked: proves guilty
“Mr. Smith: If this man the state charge given you hy of this under offense, you Court would him vote convict and fix his punishment hy at death electrocution?” repeated foregoing He statement number of prospective jurors, every asking times to each and one, you punishment hy “And will vote to fix at death his electrocution?” To which there was an affirmative answer. any juror capital punish-
If indicated his disbelief impose unwillingness penalty anor ment, extreme challenged in the instant case, he was for cause hy judge. appears following was sustained trial in the record: hesitancy,
“Mr. You would some Smith: have you proper give if felt this was the man case, penalty? the death Gurley: am
“Mr. I not sure about that at this time. you You can’t
“Mr. Smith: answer me whether give him would vote to the electric chair if it awas proper you yes can’t answer that time? case; at this Gurley: truthfully, I Not don’t
“Mr. believe. your please, challenge “Mr. If Honor we Smith: him cause. for Report big jury back to room.
“The Court: excused.)” “(Mr. Gurley passed jurors had examined, twelve been
"When counsel defendant, to the his moved the court tendered prospective accepted hy jurors that the entire list upon disqualified following he cause State place, Attorney grounds: “In the first General purports facts certain men with indoctrinate these any they given until facts when should not been have get the second witnesses on the stand; witness place up point telling it is to the where was they those indoctrinated facts, were the have been course and of facts, even before as to certain selected, qualification predicated that statement their will on attorney general it is facts; tells them which the position and will our not facts and we contend are *18 put competent on hot be facts until we witnesses improper testify in the stand to as to and it is those, of a as so selection introduce those facts, merely when it will be corroborat- called, witnesses are ing given has as facts.” what been to them every quali-
Secondly, your please, “if man Honor by pledged himself in fied the State has advance hearing trial of evidence, and'in advanсe word pledged as to he will render.” has himself what sentence by objection judge the trial The was overruled exception noted. by counsel defendant’s
Under cross-examination death were elicited to the effect answers imposed provided penalty sus- the evidence would be by theory as had been outlined tained State’s indicating Attorney the trend of District General. As inquiry: following the court made the the examination you In as words, other are not, “The Court.: you, making a statement at the court understands beyond you guilty him a rea- if find time that your only ex- would verdict doubt, sonable your penalty; is it? statement, that is not treme Well, that is the state is ask- “The Juror: what ing for, isn’t.it?” appears
It counsel furthermore defendant’s that the permitted prospective jurors was not if their to ask ‘‘ proof any in verdict would be less death than the event develops pp. (Tr. mitigating 91 and circumstances”. 92). response objection by The counsel stated Attorney asking the the District General that he was question challenge juror to find out if he should peremptorily. foregoing The of what summation transpired jurors on their voir the examination of jurors dire. no doubt The entire examination of left any the mind of them that State would be satis- fied with a death electrocution, verdict short of duty it that would be their to return such verdict. passed juror the twelfth
When State compelled him tendered to the defendant he was to take peremptory all chal- because he had exhausted of his lenges. jurors pаges examination of covers 140 my opinion precedent procedure in no
record. The has in this State. undoubtedly counsel has the
It is true the State’s *19 any jurors right all sworn to state to and before are try penalty demanded; to a case that the death will be capital punishment. opposed juror the is also to ask if juror recognized as fact a does not so believe is The that ground “challenge But a for for know of no cause”. I pros- history judicial in the of this State the case where permitted juror a to ask on his dire ecution was ever voir punishment agree to fix a defendant’s at death. if he will prospective juror question that answers under oath. extremely it for In circumstances would be difficult these upon juror a an enter consideration of case with a the open guilt or mind as to the innocence of the accused imposed. penalty should be what and fully agree in does not I that this case evidence preponderate it innocence; favor of defendant’s way. a He of is doubtless the other is under conviction revolting’ en- crime. But is nevertheless heinous proce- recognized according titled to rules of be tried safety in that is I feel dure otherwise there no the law. ; granted. a trial new should be being Considering is that the fact the death sentence upheld by a would doubtless Court, divided Governor justified granting of commutation. some measure
Mr. Burnett, (dissenting). Justice majority opinion myself agree I find unable to with the for the reasons hereinafter stated. assault was indicted and convicted for
Hale battery upon age years with intent of child under carnally given the death sentence. know her and was assignment of Hale com- of error on behalf
The 13th plains overruling new judge’s for the motion trial assigns that there error because it is said it is trial upon de- could find the which the no evidence charged guilty in the indictment. of the offense fendant assignment commission this The basis plaintiff unnatural sexual intercourse the act charged guilty act he was in error shows that the act he committed indictment because against con- only am crime nature. I commission of assignment should be sustained. that this vinced majority opinion the record According shows to the penetrated plaintiff dispute in error without opinion, vagina. and as As I read this not the anus committed argument, act was some remember I times. three
485 Clearly is based in the case which -under the indictment grava upon guilty intent is the 10785 “the Code Section in charge of the consummation men of and not the ” page opinion (2d) majority on 53. 281 W. tent. The S. question this is in hut the world I think there is no opinion majority cites the law. The correct statement of support Tenn. S. State, 250, 181 in 181 thereof Carter v. (2d) State, 378, 186 Tenn. S. W. Brown v. 137; W. (2d) 209 W. 186 Tenn. State, 195, 198, v. S. Davis 670; support, (2d) this statement. authorities and other 7, plaintiff can in most error It seems to me that the guilty is Code Section 11184 which violation it a crime for one makes Section of the Code against either mankind nature with relations have sexual penitentiary provides maximum sеn- beast recently years. Code held this have tence of 15' We “penetration per and the os” acts of covers Section this likewise from this is that clear inference section penetration State, Fisher of the anus. See v. covers (2d) 340. Tenn. 277 S. W. opinion quotes majority from to some extent inescapable
testimony record reaches clearly therein shows that the evidence conclusion my knowledge. this con- To mind carnal intent to have proof certainly sustained under the should viction plain- not for the final act which if it record were this carnally of intention to The acts committed. in error tiff necessity be the same acts must assume, I know, person necessarily an un- committed be when would pene- cаse done the instant act as was sex natural knowledge carnal One to have of the anus. tration guilty intent to do cannot be convicted of so to be final act or the consummation when the intent knowledge carnal that it not to have shows intent *21 486 course act. Of unnatural sex
but to an unlawful and have revolting very but the either is horrible I know that passed a fit to have Legislature has seen these acts who separate and when unnatural sex acts for statute these should be this act he a of one has committed violation punished an punished he should therefor but penalty. in- greater The a much offense which carries doing knowledge negatived him is tent to have carnal is a crime that when It to me the act that he did. seems accomplished the intent tо itself shows that this within doing act out be done. do was started whatever intent was. act was done shows what of the accomplished intent whatever an has been When act accomplishment act what of the shows was the mere negatives accomplishment of one crime intent was. The a different crime. the intent to do question necessary I have under the think it is I intent, of the definition look to here for us to raised especially gravamen crime for of intent is the since page at In 46 here C. J. S. man was convicted. which the intent is thus defined: 1103 thing; design; do a certain a
“A determination including purpose such mind, of the an aim; in- an knowledge intent; to such as is essential purpose; that purposing; tending intention; an or design, or deter- resolve, intеnded; which person acts. with which mination operation mind; an or “Intention is emotion of the state acts; made known attitude mental contemplated; is done act mind with which imputed by tendency law defined as the and has been purposing voluntary act; anof to an act; purpose.” implies premeditation and It volition.
487 mind is) (Intention “a settled direction tlie particular accomplishment act; of a toward tlie many jurisdictions] a [citing determina cases from thing.” way a certain do tion to act a certain or to County 216 Minn. Louis, St. State ex rel. Verbon v. p. (2d) 1105. 12 N. J. S. 140, 193, 196, C. W. State, Tenn., Lea, in the case of Court v.
This Smith 619 said of intent. intelligent mind will, “It is the exercise consequences fully being nature and aware of the such and with done, the act which is about to he *22 willing liberty knowledge action full with electing to do it. determined, condition and is
“Intent mental is a by says, one by one as it is what not much what so Hartwick, 139, Mich. Co. v. 278 does.” Detroit Trust 270 N. 253. 249,W. accompanies precedes of mind
The state
(which
204
Intent charged party to the known and circumstances tions, v. Mitchell Co. Hooker, Corser & the intent.” with 570, 573. 66, 170 N. Y. S. Hooker, 103 Misc. legal intent all
In words in definitions word other that it is here used used the sense or intention when clearly the conclusion since the man leads me to that accomplish any accomplished act that that he did accomplish- might another or facts which lead to inference clearly negative to and should be sufficient show ment are carnally to not intend know this child. that he did us State, 289 43, 529, W. In Hooks v. Tenn. S. Green reversed conviction which late Justice Chief attempting Hooks was indicted to in a bouse break knowledge against and to bave carnal of a female ber will. Tbe basis for tbis reversal was that tbe acts there clearly negative of Hooks tbe intent carnal knowl- bave edge against Judge of tbis woman ber It will. was reasoning clearly G-reen’s that be tbe record showed that going persuade try lady young tbis to commit against tbe act and not do it ber In will. other words clearly case showed that tbe be acts Hooks that did notintend to use force. It seems to me that in tbe instant accomplishment plain- .that case tbe of tbe act tbe tiff in error here did on threе occasions at tbis time, penetration plainly outspokenly is, tbe anus, negatived clearly that the acts of intent which could con- plaintiff' accomplish- tbe vict' here if it not for tbe clearly negatives ment aof related crime which intent tbe carnally know. See Criminal Wharton’s Evidence, page Frankly Yol. Sec. 1038, 1824. I un- bave been any directly point. able to find authorities But tbe question obviously, plain is to me, so that- it has never place only question arisen. Tbe tbe could arise would weight gives in tbe that tbe court to tbe evidence plain here when tbe evidence of intent is that intent but *23 things, which could be one of two as shown tbe ac- complishment clearly-negatives of a certain it act, away go carnally takes tbe intent to to tbe know. It is for this reason I think tbe case should re- plaintiff may- versed and remanded so that tbe in error be indicted for crime tbe which has commited.