25 So. 2d 54 | Ala. Ct. App. | 1946
Appellant was indicted for the offense of assault with intent to ravish. He was found guilty of "attempt to commit an assault with intent to ravish" and the jury assessed a fine against him of $500, to which the trial judge imposed an additional sentence of six months hard labor, and judgment was pronounced pursuant thereto. From such verdict and judgment and sentence appellant prosecutes this appeal.
In the early afternoon on December 1, 1944, appellant was noticed by two boys at the home of Mr. and Mrs. Edwards in Talladega. One of the boys stated the appellant was attempting to enter a window in the Edwards' home when first seen. Appellant advanced towards the boys mumbling something they could not understand. One of the boys observed a knife in his hand, the other saw "something" in appellant's hand. These two boys went on their way. Both had observed Mrs. Annie Pearl Breedlove following them in the highway going in the same direction that they were.
When Mrs. Breedlove reached the vicinity of the Edwards home appellant began mumbling and making motions toward his private organ. He was then about ten feet from her, but began advancing toward her. She "talked to him and tried to get him to stop and go back." He got to within five feet of Mrs. Breedlove and followed her about fifty feet when Mr. Edwards, an invalid who could hardly move, began yelling at appellant. Mrs. Breedlove continued on down the highway and was not pursued further by appellant.
The State also introduced as witnesses the two policemen who arrested appellant near the Edwards home shortly after the above occurrence. They testified that appellant fought them strenuously when they attempted to arrest him, made unintelligible remarks about white women on the way to jail, and one of them stated that appellant's reputation was bad. *280
Appellant was not represented by counsel at the trial below. No exceptions to any of the above testimony appears in the record. Appellant was represented by counsel in perfecting his appeal. No attack is made on the admission of the above testimony in the motion for a new trial, nor is the point argued in appellant's brief. The trial court had jurisdiction of the subject matter and of the person. The verdict responded to the indictment. The verdict of guilty and sentence thereon is not void. Review here is limited to those matters upon which the action or ruling at nisi prius was invoked. Woodson v. State,
The trial judge instructed the jury that the appellant could not be found guilty of assault with intent to ravish under the evidence submitted, but that included in such charge was the lesser offense of "an attempt to commit an assault with intent to ravish." The verdict of the jury was in such words.
The fourth ground of appellant's motion for a new trial sets forth that "no offense is charged in said verdict, and no sentence could lawfully be pronounced against him by virtue of same."
Section 42 of Title 14 provides: "Upon the trial of an indictment for any offense, the jury may find the accused not guilty of the offense charged in the indictment, but, if the evidence warrants it, guilty of an attempt to commit such offense, without any special count in the indictment for such attempt."
This Statute in itself would be sufficient to sustain this verdict. However the case of Burton v. State,
Before a defendant can be convicted of either an assault with intent to rape, or of an attempt to commit an assault with intent to rape, the jury must find that he intended to have illegal sexual intercourse with the woman assaulted by force or fear, and against her consent. Burton v. State, supra; Gilbert v. State,
Affirmed.