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02/17/69 Allen Allison, v. United States of America

February 17, 1969

ALLEN ALLISON, APPELLANT

v.

UNITED STATES OF AMERICA, APPELLEE 1969.CDC.48 DATE DECIDED: FEBRUARY 17, 1969



Danaher,* McGowan and Leventhal, Circuit Judges.

UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT

APPELLATE PANEL:

PER CURIAM DECISION

Appellant was charged in a two count indictment with (1) assault with intent to commit carnal knowledge *fn1 and (2) taking indecent liberties with a minor child. *fn2 After a trial, the jury returned verdicts of guilty on the former count and not guilty on the latter. Appellant here contends that his motion for judgment of acquittal should have been granted as to count 1, on the grounds that the Government failed to prove the elements of the offense and that the complaining witness's testimony was not sufficiently corroborated.

Mary Brown, the prosecutrix, was eleven years old at the time of the alleged assault. She was walking home with her ten-year old brother, Joseph, and her five-year old cousin, Edward, when appellant stopped the three and took Joseph into his house. Mary and Edward followed. Appellant gave Joseph some money and sent him to the store for some sodas. As Mary was leaving the house with the two boys, appellant grabbed her and slammed the door. After trying to kiss her, he put a white shirt on the couch and threw her upon it. Some wrestling and screaming ensued, during which, in Mary's words, appellant threatened to "cut my neck off" if she continued to scream. Mary testified that appellant then "opened his zipper and took out his private," *fn3 got on top of her, and "tried to pull my pants down." At about that point, Joseph and Edward returned with the sodas. Finding the door closed and hearing the screams of his sister, Joseph looked through the keyhole and saw appellant on top of Mary, holding her down on the couch. He banged and kicked on the door. Mary apparently freed herself and ran to the door, where Joseph told her how to open it. As Mary ran out, Joseph gave appellant the sodas and the change and then ran home with Edward.

Shortly afterwards, Miss Nettie Farrow went to Mary's house to find out why she was crying. Mary told her that "some man had pulled her in the house." During this time Mary "looked like she was in hysterics." Miss Farrow and Mary then left to find a policeman. Officer Geffen testified that he was summoned by Mary, who was waving her arms and yelling for the police. She was crying and appeared "emotionally upset, sort of hysterical." Over the objection of defense counsel, Officer Geffen was permitted to testify that Mary told him "that a man had taken her in his room and laid her on a couch, and dropped his pants and tried to put his private in her." *fn4 Appellant was subsequently arrested. I.

Our reading of the transcript and review of the controlling case law compels us to conclude that there was insufficient corroboration to sustain a conviction of assault with intent to commit carnal knowledge.

A. It is the law of this jurisdiction that no person may be convicted of a "sex offense" on the uncorroborated testimony of the alleged victim. *fn5 As a general rule, corroboration is required as to both (1) the corpus delicti and (2) the identity of the accused. *fn6 In both instances, the corroboration need not be "direct" (i.e., the testimony of an eye-witness);7 rather, it may consist of "circumstances in proof which tend to support the prosecutrix' story . . .."8 Although the requirement of corroboration as to identity may be relaxed in certain circumstances,9 we have never diluted the requirement that the corpus delicti be corroborated.10 Indeed, we have shown a special concern for corroboration of the corpus delicti in cases involving young girls; our "traditional skepticism"11 towards the accusations of children has prompted us to hold that the corpus delicti in the case of assault with intent to carnally know may not be established by the victim's spontaneous declarations.12

Since no question is here raised concerning identification, our only task is to evaluate the sufficiency of corroboration as to the corpus delicti. It is clear that the corpus delicti in a given case consists of all the material elements of the crime charged.13 We pass, therefore, to a discussion of the material elements of an assault with intent to commit carnal knowledge.

B. Our starting point is Hammond v. United States, 75 U.S.App.D.C. 397, 127 F.2d 752 (1942), wherein we set forth the elements of an assault with intent to commit rape as follows: "(1) an assault, (2) an intent to have carnal knowledge of the female, and (3) a purpose to carry into effect this intent with force and against the consent of the female." 75 U.S.App.D.C. at 398, 127 F.2d at 753. When the intended victim is a child under the age of 16, the third element is dispensed with,14 so that intent to use force need not be alleged or proved.15 We are left, therefore, with two elements (plus the fact of the prosecutrix' minority), as to the first of which appellant apparently concedes the record contains sufficient corroboration. It is his "intent to have carnal knowledge" that he argues was not proved and, if proved, not corroborated.

Putting aside for a moment the matter of corroboration, we have no doubt that the Government's case established an intent to commit carnal knowledge. According to the testimony of the prosecutrix, appellant grabbed her, attempted to kiss her, threw her on a couch upon which he had placed a white shirt, threatened to harm her if she screamed, exposed himself, got on top of her, and attempted to remove her pants. If this testimony were corroborated it would surely support a jury finding that, beyond a reasonable doubt, appellant entertained the intention to carnally know the prosecutrix.16

C. Although parts of Mary Brown's testimony were, of course, corroborated, the record is barren of corroboration as to the material facts indicating an intent to commit carnal knowledge. We have the testimony of Joseph that he (1) heard his sister screaming and (2) saw appellant on top of her on the couch. We have the testimony of Miss Farrow and Officer Geffen, which tend to show (1) Mary's prompt reports to a friend and the police and (2) her distraught and emotional condition. Finally, the record discloses no apparent motive for Mary to fabricate her story.17 Certainly this corroboration would support a conviction of taking indecent liberties. But it could not withstand a motion for judgment of acquittal as to assault with intent to commit carnal knowledge.

There is no corroboration as to most of what purportedly took place in appellant's apartment, including most significantly appellant's attempts to kiss Mary, his exposure of himself, and his attempts to remove her clothing.18 Since, therefore, the corpus delicti was uncorroborated, appellant's conviction of assault with intent to commit carnal knowledge cannot stand. II.

We come now to the question of disposition. Guided by our decision in Austin v. United States, 127 U.S.App.D.C. 180, 382 F.2d 129 (1967), we have concluded that the cause should be remanded with instructions to enter a judgment of guilty of taking indecent liberties with a minor ...


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