
    SLAMCIK v STATE
    Ohio Appeals, 8th Dist, Cuyahoga Co
    No 9742.
    Decided Mar 18, 1929
    John F Smolka, Cleveland, for Slamcik.
    E J Hopple, Clevleand, for State.
   VICKERY, PJ.

There are two grounds upon which it is claimed that this verdict is wrong and the judgment based thereon should be reversed. The first was that this young man had an alibi. An alibi is a good defense because if the party was not there he could not have committed the crime, but unfortunately in this case the alibi is so weak that it does not deserve to be called an .alibi. It is admitted that he, together with his friends, accosted this girl on the street. It is admitted that the friends went the other way, and the girl positively identified this young man. She had known him some time before and there is no question as to the identity and there was no alibi that was worthy of the name, introduced in the case.

The next proposition is hardly consistent With the alibi, because if he was not there he could not be charged with doing things for which he asserts the second ground of error, that is, that all the acts .that were complained of in this case fell short of an •attempt to commit a rape. It seems to be the argument of counsel that unless the force was sufficient to overcome the resistance of the girl, there would not be any attempt to commit a rape, even though he intended to. In other words, the rape must be actually committed, because if her resistance was overcome and he was successful in his attempt, then it would cease to. become an attempt. But the reason why this ended in an attempt only was that the screams of this girl were such as to attract the attention of the neighbors and within a few minutes not only were the neighbors gathered around the scene, but the father who lived a few doors away was called and he was there. The girl’s clothes were disordered and disarranged and she was thrown upon the ground and he sought apparently by all means within his power to accomplish his purpose, and was only frustrated by the screams of this girl and her resistance.

We think there is ample evidence in the record to sustain the verdict and that the defense of alibi was not proven and the identification by the girl was complete, and there can be no doubt from the circumstances surrounding this case but that the young man did assault this girl with an intent to commit r,ape.

The jury having found it so under a proper charge, we do not feel called upon to disturb the verdict. The judgment will, therefore, be affirmed.

Sullivan and Levine, JJ, concur.  