At the January term, 1905, of the circuit court of Jefferson county, the defendant was convicted of an assault with intent to commit a rape on one Maude Taylor, a female child about seven years of age, and his punishment fixed at two years imprisonment in the penitentiary, under- an indictment theretofore found against him by the grand jury of said сounty. He appeals.
Whatever evidence, if any, tends to show the commission of the offense, tends also to show that it was committed in broad daylight, by the side of a railroad track, and in plain view of a mining camp of about four hundred persons. The witnesses who testified to what they call the assault were within eight or ten feet of the рarties at the time they say it was committed. They interfered in no way, nor made any effort to protect the girl from the assault; nor did she make any outcry. Afterwards, William Edwards, one of the witnesses of the alleged assault, filed an аffidavit in blank against the assailant, charging him with committing the offense, thereby causing his arrest. Neither the child nor her mother was a witness in the case.
The evidence tends to show that the defendant, Mrs. Taylor and her dughter Maude, and the witnesses for the State, William Edwards and Vincent Dix, re
Edwards testified that he had known the defendant since the 5th day of April, 1904, but did not know' what his name was. There was a railroad running north and south a short distance from where the defendant and the witnesses for the State lived. About four hundred yards from the shops of the mines there was a cut in the right of wаy of the railroad, eight or ten feet deep, and a public road crossing at this cut. On the 23d of September, 1904, about 6 p. m., as this witness testified, he .was near the railroad cut and heard talking, and on looking down from the bank saw the dеfendant committing the assault on the child, Maude Taylor. He testified he was within eight feet of the defendant, that the sun was shining at the time, and that the place of the assault was in view of the shops. Witness said nothing to the defendant at thе time, nor does it appear that the defendant knew of his presence, although this witness testified that the little girl wаs looking straight at him. Witness knew Maude Taylor and her mother, but said nothing of the occurrence to either. Dix, anothеr witness for the State, testified that on Monday, September 26th, between twelve and one o’clock in the daytime, he saw the defendant and Maude Taylor on the picnic grounds, which were near the railroad cut already referred to, and that the defendant was sitting on the ground and in about the same position with reference to the little girl as testified to by Edwards; also that he was within eight feet of the defendant, and that the little girl was looking straight-at him; that hе, Dix,
The evidence on the part of the defense shоwed that the defendant was. sixty-five years of age, an industrious man of good character and habits, having a wife and children with whom he lived. He testified that he was never at the places designated by the State’s witnesses as the scene or scenes of the alleged assault, and that he never at any time laid his hands upon Maude Taylor with intent to harm her.
How the judgment of conviction for so heinous an offense as that charged against the defendant in this case can be permitted to stand, under the evidence and facts disclosed by this record, we are unаble to conceive. The idea that the two witnesses on the part of the State could stand silently by, as they tеstified they did, within eight or ten feet, and see the defendant in this case attempting to assault a little girl only seven
The defendant is an old man, sixty-five years of age, a man of family, a hard-working man, and a man of goоd reputation. His evidence was straightforward and gave no suspicion of prevarication, while that upon the part of the State seems incredible.
There is, we think, a total absence of evidence sufficient to justify this conviction, and it would serve no useful purpose to reverse and remand the cause for further trial. Hence, the judgment will be reversed and the defendant discharged.