Duffin v. State

⁴³⁵ Psr Curiam. The appellant, convicted by a jury in the Circuit Court for Montgomery County of assault with intent to rape, and sentenced to 20 years confinement, urges here that the evidence was insufficient to support his conviction on the charge, and that the trial judge erred in failing to grant a requested instruction on the defense of voluntary abandonment of purpose. The appellant maintains that while the jury could properly have found him guilty of common assault, the evidence was insufficient to establish the specific intent to rape. The jury had before it the following testimony of the prosecutrix, a 49 year old school teacher.

After she had returned home from school and was changing her clothes upstairs she heard a noise and found the appellant ascending the stairway. She ordered him out and screamed, but the appellant grappled with her and they fell down the stairs. When she attempted to escape by the front door he threw her to the floor and choked her into unconsciousness. When she regained consciousness the appellant was “sort of weaving” on top of her fully clothed.

She got up and attempted to persuade the appellant to leave, but he said: “I am going to have to rape you; and then I am going to kill you.” He forced her to disrobe, he assisting, and then felt her body and asked her to kiss him. The prosecutrix resisted, was again choked and thrown to the floor and lost consciousness. When she regained her senses the appellant, fully clothed, was on top of her in a straddling position “sort of weaving back and forth”. She struck the appellant and regained her feet.

He then demanded that she write a note “giving [him] permission to rape [her].” In an attempt to “stave this off” until her husband came home, the prosecutrix sent the appellant on various trips to the kitchen for cups, beverages, paper towels and cigarettes. However, the appellant insisted that the note be written, whereupon she wrote the following: “To Whom It May Concern: This is to say that I give full permission to Joseph to take me”, to which she signed her name. He had told her that his name was Joseph. The prosecutrix stated that as the parties drank their beverages the appellant told her “we will drink this last