The Montgomery advertiser., 1902-06-19


 the land at the time of the filing of the bill. and this fact must be averred.
 Reversed and rendered.
 Opinion by Tyson. ].
 JACoBI V. THE STATE.
 Indictment for Assault with Intent to
 Rape.-Appeal from the City Court of
 Montgomery
 1 Evidence: when secondary evidence of testimony of absent witness admis-i- ble.-when a witness has removed i. om tte State permanently or for an indcf- mite time. his testimony on a former trial of the defendant for the same cf- fense may be given in evidence against the defendant on a subsequent trial.
 ?. Same: same: case at bar.-On a trial under m indictment for an assault with intendt to rape. 1t was shown that upon a former tcial by the defendant for the same offense there was a mistrial: that the woman alleged to have been as- saulted was pf e;ent and testified on the former trial, but that she was not pres ent at the second trial. The return of the officer of the subpoena issued for the woman assaulted showed that she could not be found in the county of her former residence. which was the only residence there was any evidence tending to show she ever had in the State. It was shown that she was not married and had al- ways resided with her mother. A broth- CT of said witness testified that his moth- CTS home. where his sistec lived. had been broken up after the first trial of the defendant. and his mother had moved to Georgia and that his sister had also gone to Georgia and that short time before the present trial, he had received a letter from his sister which was writ ten by her in Georgia, where she had been after the removal from this State Her hrother further testified that after the former trial she stated that she would ''ratfer die than go back to another trial and go through the same ordeal' Held: That such evidence showed with requi- site clearness that. said witness was per- manently or indefinitely absent from the State at the time of the. trial. and that secondary evidence of her testimony on the former trial was admissible in evil dence.
 3Same; admissibility of eyidence.-In such a case, statement by the woman ssaulted. after the former trial. that she had rather die than go back to an- other trial and go through the same or deal" Is admissible in evidence in con nection with the inquiry as to whether or not her absence from the second trial was of a permanent or indefinite nature. 9 ASSduft WltH to Idpcs thdi 6C to the jury.-On trial under an indict- ment for an assault with intent to rape. a charge is not improperly given at the request of the State, which requires the jury to believe certain facts which the States evidence tended to show beyond a reasonable doubt, and then directs the jury that they are authorized to look at these facts If they be facts.' in connec- ton with all the other evidence in the case. in determining whether or not the defendant assaulted the person named in the indictment and if he did so assault l her. whether or not at that time he had | the intent to have sexual intercourse with | her against her will and by force. If nec- essary to accomplish his purpose. and then directs the jury that If they are sat | isfied beyond a reasonable doubt that the | defendant had assaulted said person. and | had at the time such intent. he would be | guilty of an assault with intent to ravish 1 5. Same: same.-On a trial under an | indictment for an assault with intent to | forcibly ravish. a charge which instructs | the jury that any touching by one per l son of the person of another in rudenesa or anger is an assault and battery. and every assault and battery includes an assault" is free from error and properly given at the request of the State. 6. Same; general affirmative charge On a trial under an indictment for an assault forcibly to ravish. where there | was evidence introduced tending to sup | port every material allegation of the in- dctment, the general affirmative charge | requested by the defendant Is properly | refused.
 '. Same; charge to the jury.-On a | trial under an indictment for an assault with intent forcibly to ravish, a charge ! is erroneous and properly refused wh'c 'ch | instructs the jury that Tn charge tc commite rape. the evidence to be suffi- cient to justify convictions. must show
 such acts and conduct on the, part of the
 defendant, that there is no reasonable doubt of his intention to gratify his lust | full desire, notwithstanding any resist | ance on the part of the female" such in-
 struction assuming that the charge con-
 tained in the indictment against the de- | fendant was rape.
 s. Same; same.-In such case. the court properly refused the following charge requested by the defendant: Be | fore the jury can find the defendant -,
 of an assault to ravish in this case. the | jury must believe from the evidence, be l yond all reasonable doubt, that 1t was the purpose of the defendant to fully accom-. | pish his purpose in such a manner and | by such means that. if accomplished, Il would be rape; that is. there must be ar | intent to use force. terror. intimidation and the like, necessary to accomplish
 the purpose" such charge having omit | ted an important word and also being l unsound in that 1t was not essential tc | the crime of an assault with intent tc
 ravish that the perpetrator should have | the intent that his accompli: he'd purpose | should be rape. | g. Same; same.-In such a case, the following charge requested by the de-
 fendant was properly refused: 'Tht court charges the jury that the State is
 required to fhow by evidence. beyond 8
 reasonable doubt. and to a moral cer- | tainty, the existence of every fact neces-
 sary to establish the guilt of the defend ant before he can be convicted. If from all the evidence to be proved" said
 charge being incomplete on Its face; l To- Abstract charges are properly re- | fused. l Affirmed. | Opinion by Mcclellan, c. J.
 I
 Ex Parte GILES.