[330]*330PER CURIAM.
In conference this court divided over (a) the admissibility of a confession given by the defendant while in custody in a back room at the station, and (b) the trial court’s refusal of a continuance because the Alabama statutes exclude all women from serving as jurors.
We certified to the Supreme Court of Alabama the questions and were given the answers which appear in the statement of the case along with the pertinent facts of the case.
The confession here received was not within the influence of Escobedo v. Illinois, 378 U.S. 478, 84 S.Ct. 1758, 12 L. Ed.2d 977, so as to require a reversal on this appellate review. Johnson v. New Jersey, 384 U.S. 719, 86 S.Ct. 1772, 16 L.Ed. 2d 882.
Additional claims of error which the appellant covers in his brief are:
.1) That the acts and conduct should be such as to leave no reasonable doubt as to accused’s intent — (a) to gratify his lust, and (b) this in spite of the female’s utmost resistance, citing, among others, Jones v. State, 90 Ala. 628, 8 So. 383;
2) That (a)-tinder the presumption of innocence “the worst intent * * * may not be inferred” — the reverse is true, citing McCollum v. State, 34 Ala.App. 207, 38 So.2d 291, 295; (b) If the evidence only shows that accused intended consensual carnal knowledge, the State has not made a case, citing Taylor v. State, 20 Ala.App. 161, 101 So. 160;
3) That the charge of assault with intent to rape presupposes consummation but for (a) resistance, or (b) intervention of an outside force, citing Curry v. State, 23 Ala.App. 140, 122 So. 303;
4) That if “the defendant desisted before consummation without any outside interference and with no unusual resistance on the part of the female” a conviction of assault with intent to rape will not be upheld, citing Curry, supra.
5) That a mere scintilla (or a mere suspicion) is not enough to support a verdict of guilt in a criminal case, citing Ex parte Grimmett, 228 Ala. 1, 152 So. 263;
6) That the trial judge erred in refusing the following tendered written charges:
(a) “Charge #8. The Court charges the jury that if, from the evidence in this case, you are not satisfied beyond a reasonable doubt that the defendant had any intention forcibly to ravish * * * at the time he put his hands upon her or touched her, if you are satisfied that he did put his hands upon her or touched her, but that he was simply trying to persuade her to have sexual intercourse with him, and if from the evidence you are satisfied the defendant did nothing more, you cannot convict him of an assault with intent to ravish.” — citing Brooks v. State, 185 Ala. 1, 64 So. 295 (Charge C).
(b) “Charge #7. The Court charges the jury that an indictment for assault with intent to ravish also embraces the charge of assault.”
(c) “Charge #9. The Court charges the jury that if from the evidence in this case you are not satisfied beyond a reasonable doubt that the defendant had any intention forcibly to ravish * * * at the time she got in the automobile where the defendant was hiding, if you are satisfied from the evidence that he was hiding in the automobile at said time and place, but that the defendant was simply trying to persuade her to take him to another place where he might have sexual intercourse with her, and if from the evidence you are satisfied the defendant did nothing more, you cannot convict the defendant of an assault with intent to ravish.”;
7) That on finishing his oral charge the court erred in mentioning before the jury that the defendant had not taken the stand; and
[331]*3318) That the trial court abused its discretion “by imposing on [Philpot] the greatest penalty permitted by the statute, in view of the fact that [the girl] was not abused sexually.”
In Jones v. State, 90 Ala. 628, 8 So. 383, the ratio decidendi is encapsulated thus:
“ ^ * * It appears that the defendant put his hands lightly on the woman’s shoulders, followed her silently about sixty feet, making no threats, or effort to stop her, or attempting any coercion, or doing anything calculated to put her in terror; and when she screamed and ran off, he ran in the opposite direction without attempting to detain her. These acts and conduct do not reasonably authorize the conclusion that defendant intended to accomplish his purpose against her will, and by force, if necessary. They are consistent with the theory that he expected to gratify his lustful desires with her consent. If the evidence be believed, it will be conceded that the conduct of the defendant was indecent and insulting, and subjected him to a conviction for an assault and battery; but it falls short of showing a felonious intent. * * * ”
In Pumphrey v. State, 156 Ala. 103, 47 So. 156, the court, per Denson, J., conceded the legal force of the rule in Jones that the acts and conduct must leave no reasonable doubt of intent to act against the woman’s consent and in spite of her resistance. However, the setting of Pumphrey reflects use of more violence than in Jones i. e., the defendant got upon the woman’s person while she was asleep in bed.
This attention to proof of violence appears in the report of Dudley v. State, 121 Ala. 4, 25 So. 742. Therein the court, after distinguishing Jones, supra, remarked:
“ * * * We know of no rule of law by which, when violence is used on the person of the prosecutrix by defendant, and an inference of his guilty intent as specifically charged may be inferred from his acts and conduct, the case may be taken from the jury in the giving the general charge in his favor, * * * ”
McCollum, supra, was a case of a cripple speaking to a robust female. Perhaps the words he used could have been laid in a common law indictment by means of an innuendo so as to connote an indecent meaning. But words alone without some attempt to touch were held insufficient to make out assault with intent to ravish.
Philpot pushed the prosecutrix down, grabbed her throat and asked (or demanded as the jury might infer legitimately) that she take him to a remote State Park. This was at about eleven P.M.. When these acts of physical force are viewed in the light of the words used and the-, state of the defendant’s fly, they are sufficient, if credited beyond a reasonable doubt, to sustain the verdict.
Curry, supra (reversed for admitting prejudicial matter), not only contains the proposition cited above, but also says in supporting the sufficiency of the evidence:
“ * * * Where there is physical force on the part of the man, in an attack on a woman, coupled with evidence tending to prove an intent to force an intercourse, and a physical resistance on the part of the woman or an outside interference, the whole question is one of fact for the jury. From these facts, the jury may conclude that the defendant is guilty of assault to rape, assault, and battery, or that the defendant is not guilty of any charge.”
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[330]*330PER CURIAM.
In conference this court divided over (a) the admissibility of a confession given by the defendant while in custody in a back room at the station, and (b) the trial court’s refusal of a continuance because the Alabama statutes exclude all women from serving as jurors.
We certified to the Supreme Court of Alabama the questions and were given the answers which appear in the statement of the case along with the pertinent facts of the case.
The confession here received was not within the influence of Escobedo v. Illinois, 378 U.S. 478, 84 S.Ct. 1758, 12 L. Ed.2d 977, so as to require a reversal on this appellate review. Johnson v. New Jersey, 384 U.S. 719, 86 S.Ct. 1772, 16 L.Ed. 2d 882.
Additional claims of error which the appellant covers in his brief are:
.1) That the acts and conduct should be such as to leave no reasonable doubt as to accused’s intent — (a) to gratify his lust, and (b) this in spite of the female’s utmost resistance, citing, among others, Jones v. State, 90 Ala. 628, 8 So. 383;
2) That (a)-tinder the presumption of innocence “the worst intent * * * may not be inferred” — the reverse is true, citing McCollum v. State, 34 Ala.App. 207, 38 So.2d 291, 295; (b) If the evidence only shows that accused intended consensual carnal knowledge, the State has not made a case, citing Taylor v. State, 20 Ala.App. 161, 101 So. 160;
3) That the charge of assault with intent to rape presupposes consummation but for (a) resistance, or (b) intervention of an outside force, citing Curry v. State, 23 Ala.App. 140, 122 So. 303;
4) That if “the defendant desisted before consummation without any outside interference and with no unusual resistance on the part of the female” a conviction of assault with intent to rape will not be upheld, citing Curry, supra.
5) That a mere scintilla (or a mere suspicion) is not enough to support a verdict of guilt in a criminal case, citing Ex parte Grimmett, 228 Ala. 1, 152 So. 263;
6) That the trial judge erred in refusing the following tendered written charges:
(a) “Charge #8. The Court charges the jury that if, from the evidence in this case, you are not satisfied beyond a reasonable doubt that the defendant had any intention forcibly to ravish * * * at the time he put his hands upon her or touched her, if you are satisfied that he did put his hands upon her or touched her, but that he was simply trying to persuade her to have sexual intercourse with him, and if from the evidence you are satisfied the defendant did nothing more, you cannot convict him of an assault with intent to ravish.” — citing Brooks v. State, 185 Ala. 1, 64 So. 295 (Charge C).
(b) “Charge #7. The Court charges the jury that an indictment for assault with intent to ravish also embraces the charge of assault.”
(c) “Charge #9. The Court charges the jury that if from the evidence in this case you are not satisfied beyond a reasonable doubt that the defendant had any intention forcibly to ravish * * * at the time she got in the automobile where the defendant was hiding, if you are satisfied from the evidence that he was hiding in the automobile at said time and place, but that the defendant was simply trying to persuade her to take him to another place where he might have sexual intercourse with her, and if from the evidence you are satisfied the defendant did nothing more, you cannot convict the defendant of an assault with intent to ravish.”;
7) That on finishing his oral charge the court erred in mentioning before the jury that the defendant had not taken the stand; and
[331]*3318) That the trial court abused its discretion “by imposing on [Philpot] the greatest penalty permitted by the statute, in view of the fact that [the girl] was not abused sexually.”
In Jones v. State, 90 Ala. 628, 8 So. 383, the ratio decidendi is encapsulated thus:
“ ^ * * It appears that the defendant put his hands lightly on the woman’s shoulders, followed her silently about sixty feet, making no threats, or effort to stop her, or attempting any coercion, or doing anything calculated to put her in terror; and when she screamed and ran off, he ran in the opposite direction without attempting to detain her. These acts and conduct do not reasonably authorize the conclusion that defendant intended to accomplish his purpose against her will, and by force, if necessary. They are consistent with the theory that he expected to gratify his lustful desires with her consent. If the evidence be believed, it will be conceded that the conduct of the defendant was indecent and insulting, and subjected him to a conviction for an assault and battery; but it falls short of showing a felonious intent. * * * ”
In Pumphrey v. State, 156 Ala. 103, 47 So. 156, the court, per Denson, J., conceded the legal force of the rule in Jones that the acts and conduct must leave no reasonable doubt of intent to act against the woman’s consent and in spite of her resistance. However, the setting of Pumphrey reflects use of more violence than in Jones i. e., the defendant got upon the woman’s person while she was asleep in bed.
This attention to proof of violence appears in the report of Dudley v. State, 121 Ala. 4, 25 So. 742. Therein the court, after distinguishing Jones, supra, remarked:
“ * * * We know of no rule of law by which, when violence is used on the person of the prosecutrix by defendant, and an inference of his guilty intent as specifically charged may be inferred from his acts and conduct, the case may be taken from the jury in the giving the general charge in his favor, * * * ”
McCollum, supra, was a case of a cripple speaking to a robust female. Perhaps the words he used could have been laid in a common law indictment by means of an innuendo so as to connote an indecent meaning. But words alone without some attempt to touch were held insufficient to make out assault with intent to ravish.
Philpot pushed the prosecutrix down, grabbed her throat and asked (or demanded as the jury might infer legitimately) that she take him to a remote State Park. This was at about eleven P.M.. When these acts of physical force are viewed in the light of the words used and the-, state of the defendant’s fly, they are sufficient, if credited beyond a reasonable doubt, to sustain the verdict.
Curry, supra (reversed for admitting prejudicial matter), not only contains the proposition cited above, but also says in supporting the sufficiency of the evidence:
“ * * * Where there is physical force on the part of the man, in an attack on a woman, coupled with evidence tending to prove an intent to force an intercourse, and a physical resistance on the part of the woman or an outside interference, the whole question is one of fact for the jury. From these facts, the jury may conclude that the defendant is guilty of assault to rape, assault, and battery, or that the defendant is not guilty of any charge.”
As to outside interference, there is some evidence that the approach of cinema patrons on the street may have caused Phil-pot to desist holding the prosecutrix.
Ex parte Grimmett, supra, is familiar law. We know of no precise measuring device to determine what is a mere scintilla as distinguished from proof beyond a reasonable doubt and to a moral certainty. However, here we perceive more light than from a mere “spark.”
[332]*332If, to borrow from Judge Harwood, the judicial distinction is a visceral reaction, then we must confess that, like Napoleon’s army, the law, perforce, travels on its belly.
Charge 7, under the evidence, was abstract because the evidence was undisputed that the defendant committed a touching of the prosecutrix. It was within the province of the jury to determine whether or not this was done in “rudeness or in anger.”
The law cannot, in battery, draw a line between degrees of violence, iii Bl.Comm. 120. Murdock v. State, 65 Ala. 520. Violence in law is kin to the “vi et armis” formerly required to plead a trespass. See 37 Hen. VIII c. 8 § 1. Taylor v. State, 25 Tenn. (6 Humphreys) 285.
The oral charge fairly covered the tendencies of the evidence which put the defendant in the most favorable light ex hypothesi.
Charges 8 and 9 were adequately covered by the oral charge.
We have no revisory powers as to the severity of the sentence, so long as the term thereof is within statutory limits. See Code 1940, T. 14, § 38 (two years minimum, twenty years maximum imprisonment). Our statute enables us to review judgments only. Code 1940, T. 15, § 367 (appeal), § 383 (writ of error).
The defendant did not testify. The trial judge’s oral charge originally stated inter alia:
“ * * * you are to determine whether or not the defendant was telling the truth when he testified on the stand.”
On having this lapsus linguae called to his attention, the court then pointed out that the defendant had not taken the stand and withdrew his prior statement. Under Code 1940, T. 15, § 305, this was not error. Pierson v. State, 39 Ala.App. 346, 100 So. 2d 47.
Unlike the California trial judge’s charge in Griffin v. California, 380 U.S. 609, 610, 85 S.Ct. 1229, 14 L.Ed.2d 106, the court’s charge here wholly omitted after correction any instruction that the jury might make any inference from Philpot’s election not to be a witness.
Even if we were to be wrong in this view, yet since Philpot’s trial began before April 28, 1965 (the date of Griffin’s delivery), the Fourteenth Amendment rule there abrogated is not retrospective. Tehan v. United States ex rel. Shott, 382 U.S. 406, 86 S.Ct. 459, 15 L.Ed.2d 453.
The original opinion of the writer, Appendix hereto, sets out the facts which we adopt for this opinion.
The judgment of the circuit court is due to be
Affirmed.