Brown v. State , 121 Ala. 9 ( 1898 )

, TYSON, J—

It cannot be:seriously .controverted..that the evidence to sustain a. conviction for an assault ¡upon a girl with an intent, forcibly to ravish; her, must establish. the intent of the defendant to ravish beyond a .reasonable .doubt. . That such an intent, existed in the-mind of the defendant .at the time of an assault with: Torce; must, oftentimes, be gathered solely from his conduct; acts of violence perpetrated upon..the female, the;age of the female,, previous relations existing-between them, if any existed, time and place of the assault :ahd other circumstances attendant upon .the-occurrence. : It is1 seldom .that a case qan be.found where the -co.urt;can;.as:a' matter of law, determine from the.evidence, that, the intent to. ravish did or- did not. .exist. Where the intent rests in inference to-be deduced.from the-facts proven,its existence or non-existence must be submitted,to the jury for their determination. ... , m

.. The case, of Dudley v. The State, ante, p. 4, is conclusive of the refusal to grant defendants-motion t<4 exclude the testimony introducéd.by the State and, to-give charges 1 and 2 requested by the defendant- ■ r.In his.-closing argument to the-jury the- solicitor-char-*' acterizecl the defendant as a “fiend and 'a ¡demon having* afoul heart” and., appealed, to the-jury to- convict t-he defendant “in order to protect innocent little girls from such: black fiends and. demons as- the defendants - The clauses in Quotations were objected to by defendant’s counsel and the court was requested to exclude them from the jury. Pretermitting all inquiry into the sufficiency of the attempt of the trial judge to exclude the remarks of the solicitor from the jury, we are of the opinion that the remarks were not unwarranted by the evidence in the case. The evidence disclosed acts of brutality indicative of a depravity attributable only to human beings of a fiendish nature or demoniacal disposition. So long as counsel confine themselves to the evidence in the case and reasonable inferences deducible therefrom, they cannot and should not be controlled by the court as to the language employed by them, if decorous or not offensive to the court trying the cause. As said by Justice Stone in Cross v. The State, 68 Ala. 483, ( ‘“While the presiding judge should not permit wanton abuse of adversary or witness, he would occupy questionable ground, if he arrested counsel in his attempt to educe inferential facts or intents' from testimony in proof. Argument is but an aid to the jury, to enable that body to arrive at correct conclusions; and it would-be dangerous to accord to him the right and power to intervene and declare authoritatively when an inference of counsel is or is not legitimately drawn. This is for the jury to determine, if there be any testimony on which to base it.”

Charge No. 3 requested by the defendant clearly invaded the province of the jury and required the jury to acquit, notwithstanding the evidence convinced them of his guilt beyond a reasonable doubt. The jury may have thought the evidence susceptible' of the interpretation that Hunter and not the defendant assaulted the girl, and yet thought such interpretation was not of such probative force as to raise a reasonable doubt of the guilt of the defendant.

Charge 4 required the jury to' acquit the defendant upon a doubt of his.identity and was bad. It is a reasonable -doubt which entitles a defendant in a criminal ease to' an acquittal;

Charge 5 was an argument- evidently in answer to' the closing remarks of the solicitor. •

We find no error in the record and the judgment must be affirmed.