This is Huggins's second appeal and is from a judgment on a verdict of guilty of abusing a six-year-old girl in an attempt to know her carnally. His punishment was fixed at twenty years in the penitentiary.
(1) "and then `it was damp'; that appellant then let the girl get up and helped her put on her pedal pushers"; (271 Ala. 430, second column, 123 So.2d 912, first column) does not follow from the evidence on the instant trial;
(2) all references in the opinion based on testimony of Huggins must be deleted here since he did not take the stand on his second trial; and
(3) there is no testimony by the girl's mother of the details of her complaining.
The physician on cross-examination stated he was of the opinion it was not "physically possible for a man to have sexual intercourse with Patricia Ann Parker."
The offense is statutory; Code 1940, T. 14, § 398, reads:
Applicable here is the second aspect,
The trial judge refused the following charges requested by defense counsel:
Appellant's counsel have argued that attempt to commit a crime is not given us by any general rule. Then we are advised that an attempt contemplates an act directed to a goal within the realm of possibility, that is, leading to the inchoate crime toward which the ineffectual act points.
Subsuming to this premise the small size of the vagina of the girl child assaulted, we are then told, since penetration itself was impossible, there could not have been an
Huggins argues the evidence fails to make out a prima facie case because the girl was presumptively incapable of being penetrated and, therefore, his acts, while lustful, were a gratificatory end in themselves. No question of the indecent liberty Act (No. 397, Sept. 9, 1955) is presented.
Attempt to commit a crime (particularly within the scope of Code 1940, T. 14, § 42)
Needless to say remote preparatory acts not reasonably in the chain of causation do not make out a case of attempt.
Requested charges 11 and 21, wherein frustration is posited on "extraneous interference" or "physical impossibility," find some support in the discussion of attempts (as distinct crimes) in 22 C.J.S. Criminal Law §§ 74, 75(1)-(3) and 77— though there is one significant limitation in the last section.
We consider that "attempt" within the meaning of § 398, supra, is not to be construed so as to make possibility of carnal knowledge an ingredient of the offense of abuse under that section.
A statute using a term must be regarded in the light of its context. The forerunner of this enactment goes back to 1576. iv. Bl.Com. 212; Toulet v. State, 100 Ala. 72, 14 So. 403. Our wording, "or abuses such girl in the attempt," significantly differs from that used in Stat. 18 Eliz. I, c. 7, § 10, "carnally know and abuse."
In Dawkins v. State, 58 Ala. 376, 29 Am.Rep. 754, "abuse" in this statute was held to be an injury to the girl's genital parts resulting from an attempt at carnal knowledge. Producing a "hurt" in such an attempt has been considered enough. In so hurting her, the man may be as guilty if he uses his hand as he would if he should use his penis. Castleberry v. State, 135 Ala. 24, 33 So. 431.
Thus, in Lee v. State, 246 Ala. 69, 18 So.2d 706, reversed on another point (where the man put his hand on the girl's private parts and a physician testified that a finger had entered the vagina and injured the hymen),
In Baldwin v. State, 27 Ala.App. 259, 170 So. 349, this court, per Rice, J., said:
The bill of exceptions there shows the evidence of Baldwin's "improper treatment" was analogous to that by Huggins in the instant case.
It is clear that, in this crime, the Legislature has said that if the State proves the man abused the girl's genitalia, then the intent with which he did the act is to be determined by the jury from the circumstances surrounding what he did. It might be that subjectively Huggins had no thought of perpetrating a penetration of the girl's vagina, having deluded himself with some fantasy in which he sublimated his desire into a substitute act of frottement, i. e., a mere licentious and onanistic rubbing. Yet we believe our statute as construed encompasses as an attempt the doing of an overt act from which intent to have carnal knowledge (as a condition of mind) could reasonably be inferred. Impossibility of having carnal knowledge of the girl does not, as a matter of law, prevent a man from feloniously so trying.
We have carefully read the entire record as required by Code 1940, T. 15, § 389, and consider the judgment below should be