July 26, 1920. The opinion of the Court was delivered by The defendant was tried at the October, 1919, term of the Court of General Sessions for Spartanburg county, upon the charge of assault with intent to ravish. The defendant denied the facts narrated in the testimony of the prosecutrix, and set up the defense that he was not present at the time of the alleged assault — in other words, an alibi.
The jury rendered a verdict of guilty, and the defendant was sentenced to be electrocuted on the 5th day of December, 1919. He appealed upon numerous exceptions, which will be reported. The prosecutrix thus testified:
"Q. Now, just state what happened to you on Monday morning, the 15th day of last September. A. I was on my way to my work in Spartanburg. Q. What road did you have to travel to come to Spartanburg? A. Highland avenue. Q. Is your house outside the city limits? A. Just in. Q. In coming from your residence to work, through what portion of the town do you travel? A. Southwestern. Q. *Page 440 Then you come through the colored district? A. Yes, sir. Q. As you come away from your home the first 200 or 300 yards, what is there along the road? A. Just a field; not anything. Q. How does your house sit with respect to that piece of woods you had to pass coming to the city — down the hill, is it not; practically out of sight, except the top, the upper story, from that point? A. Yes, sir. Q. About what time of day was it, when you came along near where this piece of woods is, that morning? A. About 8 o'clock. Q. When you approached these woods whom did you see, if anybody? A. I didn't see any one until this Grover approached me. Q. How close were you to the woods? A. I was 8 or 10 feet from the edge of the woods. Q. Had you seen any one up to that time? A. No, sir. Q. How did he approach you — just speak so this gentleman over here can hear you? A. He said, `Lady, can you change $5?' Asked me if I could change $5. I told him I did not have any change — perhaps, if he would go down to the house, my father could change it. He said, `I will give you $100 for your person,' and with that he ran out and grabbed me about the waist. Q. What did he say as he grabbed you? A. He said, `I want you.' Q What part of your body did he grab you? A. He grabbed me around the waist, with his left hand. Q. What, if anything, did he have in his right hand? A. He tried to get his right over my mouth. Q. How long did he engage you in the struggle before you get loose? A. I could not say — just a short while. Q. How did you get loose? A. I jerked loose. I had on this patent leather belt, and his hand slipped, and when his hand slipped I jumped to my feet and screamed, and when I screamed he ran down through the woods. Q. You say you jumped to your feet? A. I fell to the ground when he grabbed me, and I screamed as I was coming up, and he ran down through the woods. Q. What portion of your wearing apparel did you lose? A. I lost a comb I was wearing in *Page 441 my hair. Q. Did you lose any other part of your wearing apparel? A. Lost no other part of my wearing apparel. Q. Did you know at that time that you had lost your comb? A. I did not. Q. What became of him? A. He ran down through the woods. Q. That piece of woods would be to your right coming towards the city? A. Yes, sir. Q. What is on the left? A. It is an open field on the left. Q. What house, if any, is near there? A. Not any. Q. Tolerably near? A. There is a negro house. Q. Is, or not, that house this way coming towards Spartanburg? A. This way; yes, sir. Q. Did you see any one around that house at that time? A. No, sir; I did not. Q. Did you see any one in hearing or sight there when he came to where you were? A. No, sir. Q. When he ran what did you do? A. I was so stunned I just stood there, and then I started down to my home and told my father. Q. When was the next time you came to the place, and whom did you come with where this happened? A. I came back later. I came with Sheriff White and Mr. Lancaster and my father, and two other gentlemen; I don't remember the names; two other officers, I think. Q. Did you point out to them the place where he grabbed you in the road? A. Yes, sir. Q. Where the struggle took place? A. Yes, sir. Q. And did you or not show them where he left through the woods? A. Yes, sir. Q. Did you or not describe his personal appearance to them? A. Yes, sir. Q. After that time, then, do you know who did that now? Do you know the man that grabbed you? A. Yes, sir. Q. Who is he? A. That Grover — Q. Is this he over here? A. Yes, sir. Q. You are confident that is the man. A. Yes, sir. Q. When was the first time you saw him afterwards? A. At the county jail. Q. Did you identify him there? A. Yes, sir. Q. Who were present? A. My father and my sister, Sheriff White, and Mr. Floyd, and Chief Hill, and Mr. Lancaster, and Mr. Haddon. Q. Did anybody aid you in making this identification? You *Page 442 made it unaided and alone? A. Yes, sir. Q. Positively? A. Yes, sir. Q. Before you identified him, did they present to you some other person? A. Yes, sir. Q. (Where is that fellow? What is your name? A. Kelly Thompson.) Was this man presented to you for identification? A. Yes, sir. (Objection.)
"The Court: It is a circumstance testing the accuracy of her identification — it is just a circumstance for the consideration of the jury; they may give it any weight they want to. I think it is proper for it to come out.
"Q. (By C.P. Sims, Esq.): I would like to ask her if this defendant was present when this alleged transaction, of which she is now testifying, took place. If he was not present, we would ask if, under those circumstances, the testimony is competent.
"The Court: I think it is proper for it to come out.
"Q. Was the other man present when this man was presented for your identification? A. No, sir. (Objection on the ground the other man was not present.) Q. What was the appearance of Grover Butler that morning, how was he dressed? A. The best I can remember he had on overalls — an overall suit — he had on nice looking tan shoes, and, I think, he had on a cap. He appeared very neatly — his appearance was very neat. Q. What was his appearance as for teeth and mustache? A. Had a Charlie Chaplin mustache, and beautiful white teeth. Q. At the time you did identify him, how many negroes were in the cell with him? A. Nine. Q. When you were first admitted in the jail room, was he among the nine others? A. Yes, sir. Q. What question, if any, did they ask you at that time? What question were you asked by the sheriff or anybody else? A. He told me he was going to carry me up to the cell. He said he would bring one out at a time, and for me to nod my head and identify him, if it was the one. Q. Were you able to tell whether he was the one among all those in there? *Page 443 A. Yes, sir. Q. That point out there is in Spartanburg county and in the city limits? A. Yes, sir. Q. In passing through that place there coming to the city, coming to Spartanburg, what sort of district is that, white or colored? A. Mostly colored. Q. Is there, or not, a colored store near this point? A. Yes, sir. Q. Have you, or not, been passing back and forth this way by that colored store and those colored houses as you came to and from your work? A. Yes, sir. Q. At what hours? A. About 8 o'clock in the morning, and return 5:30 or 6. Q. Usually with some one or unaccompanied? A. Usually unaccompanied. Q. Had you any occasion to observe crowds of colored men and colored folks when you would pass through there? A. Yes, sir. I did not observe them particularly; just noticed them congregated there at times when I would pass through. Q. Are there any white families near there? A. My father runs a plantation there. We are the only white family right close around there. It is some distance to the first white house, and some distance this way to the nearest — to the first house in town. Q. It is kind of lonely place down on the creek there, your home? A. Yes, sir. Q. Did you receive any injuries as to your clothing when you fell in that scuffle? A. My skirt had dust on it. Q. Any other marks or injuries to amount to anything? A. No, sir. Q. Was that condition brought about by falling? Did you exhibit that condition to any of the officers? A. My sister noticed it."
The exceptions now will be considered.
First exception. It is only necessary to refer to the testimony which we have reproduced, to show that this exception cannot be sustained.
Second exception. Even if this testimony was irrelevant and incompetent, it cannot be successfully contended that it was prejudicial to the rights of the defendant. This Court, however, approves the ruling of his Honor, the presiding Judge, hereinbefore stated. *Page 444 Third, fourth, and fifth exceptions. What the prosecutrix stated to the members of her family immediately upon her return home after the assault was admissible in evidence on the ground that it was a part of the res gestae.
Sixth, eighth, and ninth exceptions. It was necessary for the prosecutrix, in the interest of law and order, to identify, if within her power, the one who made the assault upon her; and there was no unfairness whatever in the methods of identification which were pursued.
Seventh exception. It does not appear from the testimony whether the defendant was concealed or not before accosting the prosecutrix.
Tenth exception. There are two reasons why this exception cannot be sustained. In the first place, no request was presented embodying the proposition of law for which the appellant's attorney now contends; and, in the second place, his Honor, the presiding Judge, thus charged the jury: "If, after a review of the whole testimony, the testimony as to the alibi, and the testimony as to what his intentions were, if in view of the entire testimony, you have a reasonable doubt as to whether he is guilty, it is your duty to acquit him. If you have a reasonable doubt as to whether or not he has established his alibi, it is your duty to acquit him."
It is the judgment of this Court that the judgment of the Circuit Court be affirmed, and that the case be remanded to the Circuit Court, for the purpose of having another day assigned, carrying into execution the sentence imposed by the Court. *Page 445