Witherby v. State
Supreme Court of Alabama
Eeom tbe Circuit Court of Barbour. Tried before tbe Hon. J. McOaleb Wiley. The indictment in tbis case, wbicb was found on tbe 14th November, 1885, charged tbat tbe prisoner, “Henry With-erby, a freedman, assaulted Mary Stuart, a white child, under tbe age of ten years, with intent to ravish her; against tbe peace and dignity,” &c. Tbe defendant pleaded not guilty, without objection to tbe indictment.
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Eeom tbe Circuit Court of Barbour. Tried before tbe Hon. J. McOaleb Wiley. The indictment in tbis case, wbicb was found on tbe 14th November, 1885, charged tbat tbe prisoner, “Henry With-erby, a freedman, assaulted Mary Stuart, a white child, under tbe age of ten years, with intent to ravish her; against tbe peace and dignity,” &c. Tbe defendant pleaded not guilty, without objection to tbe indictment. Tbe jury returned a verdict of guilty, and tbe court thereupon sentenced him to death. After conviction, tbe defendant moved in arrest of judgment, on tbe following grounds: “1st, tbat the…
1Opinion of the CourtJudge, J.
Section 8307 of tbe Code, under wbicb the prisoner was convicted and sentenced, is as follows: “Every slave, or free negro, who commits, or attempts to commit, a rape on any white female, must, on conviction, suffer death.” The indictment charges, that the prisoner, “Henry With-erby, (a freedman,) assaulted Mary Stuart, a white child under the age of ten years, with the intent to ravish her.” The “only distinction between an intent and an attempt to do a thing, is that the former implies the purpose only, while the latter implies both the purpose and an actual effort to carry that purpose…
2Cases cited3 opinions
- Lewis v. StateSupreme Court of Alabama · 1860
- State v. BullockSupreme Court of Alabama · 1848
- Prince v. StateSupreme Court of Alabama · 1860
3Cited by2 opinions
- Fowler v. StateCourt of Criminal Appeals of Texas · 1912
- Moody v. LovellSupreme Judicial Court of Maine · 1950