
    Dudley v. The State.
    
      Assault with Intent to Rape.
    
    1. Rape; what may he proved in trial of. — A defendant being on trial under an indictment' for assault with, intent to rape, it was proper for the State to prove that there were no curtains on the window of the room in which the prosecutrix was sleeping on a pallet at the time th'e attempt was made; and that an electric light shone in the window; both as tending to show that the defendant could see the prosecutrix as she was lying on the pallet, and thus to show his purpose in entering the room, and also as furnishing opportunity to the prosecu-trix and another witness to identify the defendant.
    2. Defendant may he recalled as a witness to lay predicate to impeach. — A defendant who has voluntarily testified in his own behalf and has left the stand, may be recalled at the instance of the State in order to lay a predicate to impeach him.
    3. Intent in assault; when submitted to jury. — While in a trial of assault with intent to rape, the Court should direct an acquittál of the felony charged, if the evidence raises a mere suspicion, or, admitting all it tends to prove, defendant’s guilt is left in uncertainty, or dependent upon conjecture or probabilities, yet, when the evidence shows that the purpose of the defendant was accompanied by force of a violent character, and that an inference of his guilty intent as specifically charged may be drawn from his acts and conduct, the intent of the defendant should be left to the jury.
    Appeal from tbe City Court of Mobile.
    Tried before tbe Hon. O. J. Semmes.
    Tbe facts are stated in tbe opinion.
    W. S. Lewis, for appellant,
    submitted tbe following authorities to show that a mere assault and battery will not authorize tbe submission to a jury of', .the question, of intent in tbe case of an assault to rápe. — T'óulet v. The State, 100 Ala. 72; Charles v. Thé State, 6 English, 389; Sanford v. The State, 12 Tex. Ct. Appeals, 196; Jones v. The State, 90 Ala. 628. (2)., On the question of tbe electric light. — 1 Brick., 873; 3 Brick., 435. (3). On tbe matter of recalling defendant to witness stand. Con. Art. I, Sec. 7; Code, § 5297.
    - Chas. G-. Brown, Attorney General, for tbe State,
    cited Johnstons Case, 73 Ala. 523; Pelham’s Case, 89 Ala. 28; Coker’s Case, 91 Ala. 92; Lucas’s Case, 96 Ala, 51; Sim’s Case, 99 Ala. 161.
   HARALSON, J.

— 4. Tbe prosecutrix testified that there was an electric light on tbe corner, which shone in the -window of the house, and that .there was no .curtain to tbe window. It -was in tbe night time, about mid; night, as tbe evidence tends to show, when defendant raised tbe window and entered prosecutrix’s room. Tbe object of this evidence was to show that defendant could see tbe prosecutrix through the window, as she slept on a pallet inside the room, and as fending to show bis' purpose in entering. It was also an important fact as ‘ furnishing opportunity to tbe prosecutrix and another witness in- tbe room at tbe time, to identify tbe defendant as the guilty party and was admissible for these purposes. This ruling applies to an objection to a similar question propounded to tlie witness, Minnie Gif-ner, constituting the next'exception reserved by defendant. ' ■ ■

2. The defendant testifying for himself stated, that he did not tell Wiley Orr at the store the next morning (after the commission of the alleged offense), “that he heard the screaming the night before and went to the house and talked to the women and he never did tell Orr any such thing.” This appears to have been drawn, out on cross-examination by the State, as a predicate: for contradicting him by Orr. The State introduced Orr, who testified that he saw defendant several mornings afterwards, but not the next morning after the occurrence. The solicitor then proposed to ask him, .wbiat de-. fendant told him about hearing tlie screaming, and his having gone over and talked to the women, but defendant objected because a predicate for contradicting-him had-not been properly laid. The solicitor then asked permis-. sion to recall defendant to lay the predicate, and def énd^. ant objected to being put up by the State, on the,ground,, that the State had nq legal right to put defendant on the stand. The court overruled the objection, and in this: there ivas no error. Thomas v. The State, 100 Ala. 53; Thompson v. The State, 100 Ala. 70.

’ 3. The prosecutrix testified, that on 23rd of last April, a man (whom she afterwards identified as defendant)^ carné in her room; that there was a large dry goods box; in the yard and he rolled that up to the window and got up on it and came in and got on the pallet by her and aroused her by strikng her foot, when she pushed him; that he was down at her feet and.came up towards her head, when she called her sister who was in the room; that lie put his hand over her mouth and she pulled it off,, and he commenced choking her, and she called to her sis-, ter again; that her sister got up and struck him,, when,to use her language, “he got up then from oyer me ,and.. knocked her down, and about that time the lady friend, (■shown to have been Miss Gifner,. who was on the.pallet-with her), waked and says, ‘Estelle, what is the matter?’ and I said ‘there is a great big man in the room choking me to death,’ and she got up and said, ‘Estelle take the hatchet and split his brains out,’ and he jumped out . of tbe window, and tried to get back in tbe window three times afterwards, and threw bricks, oyster shells and tin cans in the window, and the third time (when) we were hollering murder, and help, he threw the window np and topic me,by the back of the neck and tried to pnll me out, and. my sister got him loose; she knocked him loose and we hollered for .some time and finally he went away.” Prosecutrix’s sister was not present at the trial and was not examined.; Miss G-ifner was examined, and testified to facts substantially corroborating prosecutrix.. Both of them identified the defendant as the' party who entered .the room.

■: The defendant introduced evidence tending to show he.was not the guilty agent.

■ He requested the court to charge the jury that if they believed the evidence, they could not find him guilty of an assault Avith intent to rape. This charge Avas asked, as is argued by defendant’s counsel as proper, on the theory, that the' evidence is wholly lacking to sIioav that the defendant is guilty of the felonious assault charged. The'proposition asserted by counsel, -Avithin Avhich he insists the case falls is, that a mere assault, or an assault and battery by a man on a woman is not sufficient evidence to. be submitted to the jury, upon a charge of an assault to ravish; that, there must be some evidence to. .sIioav an intent to ravish, and that there must not only be Adolence used, but that there must be also something to show an intent to have sexual intercourse Avith the Avohian. To sustain the contention stated substantially in his OAvn language, counsel cites seAreral authorities, among them our oavu cases of Toulet v. The State, 100. Ala. 72, and Jones v. The State, 90 Ala. 628. These cases Avere properly decided on the facts they involved. In Jones’ case, the criminal purpose of the defendant was disclosed by him, but he used no violence on the prosecu-trix. Th.e court said as to the well established rule of the-decisions in such cases, “If the evidence raises a mere suspicion, .or, admitting all it tends to prove, defendant’s guilt is left in uncertainty,, or dependent upon conjecture or probabilities, the court should instruct the jury to acquit. The evidence should be of such character as-to overcome, prima facie, the presumption of innocence. It appears that the defendant put his hands lightly on the woman’s shoulders, followed her silently about sixty feet, making no threats, or effort to stop her, or attempting any coercion, or doing anything calculated to put her in terror; and when she screamed and ran off, he ran in the opposite direction, without attempting to detain her. These acts and conduct do not reasonably authorize the conclusion, that defendant intended to accomplish his purpose against her will, and by force, if necessary.” The court held, that the general affirmative charge, restricted to the acquittal of defendant of the specific felony charged should have been given. It is most manifest, however, that if violence had been used, which reasonably authorized the conclusion that defendant intended to accomplish his purpose against the will of the woman, the ruling would have been different.

Toulet’s case is to the same general effect: After reviewing the authorities, the court ádded, applying the principle deduced to the case before it — “In the case we have in hand the accused employed persuasion to induce the little girl to do an immodest and improper act, whilé there was no testimony of violence, force or threats, used or made by him: If there was any intention on his part to cohabit with her, it is left to inference, as his acts, though indecent and improper, did not clearly and unmistakably indicate such purpose. ' Neither by word nor act of his is it shown that such was his desire — his purpose to accomplish it at all events, regardless of opposition from her. We hold there was no evidence of an intent to ravish, which justified the submission of its sufficiency to the jury. The general charge asked by defendant ought to have been given.”

Again, it is made clear from this decision, that if there had been violence, force or threats used by defendant, to clearly indicate his purpose to ravish the child, the conclusion announced could not have been reached. We know of no rule of law by which, when violence is used on thé person of the prosecutrix by defendant) and an inference of his guilty intent as specifically charged may be inferred from his acts and conduct, the casé may be taken from the jury in the giving the general charge-in bis favor. Sims v. The State, 99 Ala. 161 ;Lucas v. The State, 96 Ala. 51.

4. In the case before ns, the purpose of the defendant, as indicated from the evidence, was accompanied by force of a violent character, and by threats, such as unmistakably indicate that he intended to accomplish his purpose, at all events, regardless of opposition by the prosecutrix, which might have been carried into effect, if the presence and assistance of others present had not deterred him. The general charge for defendánt was properly refused.

Affirmed.  