State v. DeGeralmoState v. DeGeralmo
The opinion of the court was delivered by
The defendant was convicted of an attempt to commit a ra.pe, and brings the record here for review under section .136 of the Criminal Procedure act. 'Many causes are specified as ground for reversal, but it is only necessary to сonsider one of them.
The case made by the state was that a man entered' the room of the complaining witness аt night whose face she did not see, and the evidence of his guilt rests upon her subsequent identification of him through his voice, and аn odor of garbage about his clothes while he was in the room, it being shown that he'was a garbage collector, and uрon a comparison of finger marks found upon one of the posts of a portico, by which the guilty person ascended from the ground to the window of her room, a duly qualified expert having compared the admitted finger prints of the defendant with those found on the post, testifying that in his opinion the impressions were made by the same hand. In addition to this it was shown that a cap left in -the room by the guilty party resembled a cap sometimes worn by the defendant. This was substantially the state’s ease. The defendant was called as a witness in his own behalf and denied the charge, saying tlyat he was at home on the night in question and wеnt to bed about eight-thirty, remaining there all night, and was not out of his bed until about six o’clock the next morning. Tf this was true then he has established an alibi. Defendant’s wife testified that she occupied the bed with her husband; that she was awakened two or three times during the night, the lаst being about one o’clock, to look after* a sick child, and that her husband was in bed each time, hut after that she slept until four o’clock, when aroused by an alarm clock, and her husband was still there. There was
The requеst in the present case contained a correct statement- of the law, -was applicable to the testimоny, and clearly-material to the defendant’s case, which he was entitled to-have distinctly charged, and in its refusal Ire suffered a. manifest wrong and injury.
“One of the most important duties of the court is to declare the law applicable to a сase to the jury when requested so to do. This should be done in such a way as not to leave room for misapprehension or mistake.” Roe v. State, 16 Vroom 49.
We are of opinion that the defendant was entitled to have the legal proposition requested distinсtly charged, and that this rvas not complied with by the court, unless the legal effect was substantially covered by its charge to-thе jury (Aldrich v. Peckham, 45 Vroom 711; Mellon v. Victor Talking Machine Co., 48 Id. 670), and a careful examination of it shows that the precise point raised by the request