An attempt to commit a crime is an act done with intent to commit it, beyond mere preparation, but falling short of its actual commission.
DECIDED SEPTEMBER 11, 1947. Fred Anderson was convicted of an attempt to commit sodomy. His motion for new trial, based on the general grounds only, was overruled, and he excepted.
The prosecutrix testified: "On the first Saturday in February, 1947, I saw Fred Anderson down about the corner of Stevens and Jackson Streets. I have been knowing him for ten or twelve years. That was late in the afternoon. He said he would take me home; that he was going to see his aunt near my home. I live out in the *Page 644 country about nine miles. I got in his automobile with him and he drove out of town on a road I did not know, but found out it was Fletcher Street or Lester Street. It was about dark when we drove out of town. He drove out to the Boulevard near Finney Hospital, and pulled off of the road on a side road and off that road a few feet and stopped. I asked him what he was stopping for. Then I found out what he wanted. He wanted me to take his privates in my mouth. I would not do that. I was sick and have been sick for a long time. He got out of the car and came around on my side and took me out. He said for me to take his privates in my mouth. I would not do that and he beat me. He beat me with his fists. After he had said for me to take his privates in my mouth and I wouldn't he beat me two or three times with his fists. After he beat me I do not remember much because he beat me unconscious. I do not know how long I was out there. Some white boys brought me back to town that night and I went home Monday.
"The following Wednesday Fred Anderson and some other folks came out to my home and wanted to settle the case. He offered me $100 to drop it. Later that week he came again with some other folks. I agreed that if he would give me $225 I would drop the case. He agreed to that, but the court would not allow the case to be dismissed. I am no kin to Fred Anderson. His uncle married my mother."
Gus Watt testified for the State in substance: That some high school boys and girls were on a straw ride, and as they were passing the place where the prosecutrix contends the crime was committed, they heard a woman calling and some of them went to her. He stated: "She [prosecutrix] was conscious at least for some of the time, but she could not tell us much about what had happened to her. She had on her clothes. She appeared to have been beaten about the face and was bloody a little. Her clothes were messed up. We brought her in to the hospital. While we were there, getting her up and into our truck, a car drove up on the Boulevard and stopped. Before we could find out who was in that car it drove off again. We never knew who was in that car nor why they stopped." Reece Turrentine and Howard Andrews testified in substance to the same effect.
The defendant denied his guilt, and relied upon an alibi. He *Page 645 introduced other witnesses whose testimony tended to support his alibi.
Sheriff C. M. Dixon testified for the State in effect that he had talked with the defendant on several occasions before the trial, but the defendant had never mentioned his alibi. He stated: "The first time I ever heard anything about him going to Boston to sit up with sick folks was right here in court when he and his witnesses made that statement."
The jury seemed to have accepted the testimony of the witnesses for the State rather than the statement of the defendant and the testimony of his witnesses, which, of course, they had a right to do. The defendant insists that the evidence fail to show that the defendant made an attempt to commit sodomy.
"`The word "attempt" is more comprehensive that the word "intent," implying both the purpose and an actual effort to carry that purpose into execution. 2 Bishop's New Crim. Proc. (4th ed.) § 80, subsec. 4.' Smith v. State, 126 Ga. 544, 546 (55 S.E. 475). `If any person shall attempt to commit a crime, and in such attempt shall do any act toward the commission of such crime, but shall fail in the perpetration thereof, or shall be prevented or intercepted from executing the same, he shall . . be punished as follows: . .' Code, § 27-2507. `An attempt to commit a crime is an act done with intent to commit it, beyond mere preparation, but falling short of its actual commission.' 12 Cyc. 177; Cook v. State, 41 Ga. App. 313 (153 S.E. 201)."Green v. State, 70 Ga. App. 103 (27 S.E.2d 567).
In the instant case, the prosecutrix testified that the defendant, after having enticed her to go into the country on the false pretense of taking her home and turning off of the road, expressly stated his intention to commit sodomy then and there, and in his attempt to do so did the following acts: He told the prosecutrix he wanted her "to take his privates in my mouth. I would not do that. I was sick and have been sick for a long time. He got out of the car and came around on my side and took me out. He said for me to take his privates in my mouth. I would not do that and he beat me. He beat me with his fists. After he had said for me to take his privates in my mouth and I wouldn't, he beat me two *Page 646 or three times with his fists. After he beat me I do not remember much because he beat me unconscious."
Thus, the jury were authorized to find that the defendant failed in the perpetration of the commission of the crime of sodomy because the prosecutrix refused to take his private parts in her mouth when ordered by him so to do, and that the acts of the defendant in taking the prosecutrix out of the car and beating her were acts done in pursuance of his intent to commit sodomy, and directly tending to the commission of the crime.
The cases cited in the brief of plaintiff in error are clearly distinguishable by their particular facts from the instant case.
The evidence authorized the verdict, and the trial judge did not err in overruling the defendant's motion for new trial.
Judgment affirmed. MacIntyre, P. J., and Gardner, J.,concur.