Barnett v. State, 83 Ala. 40

Barnett v. State

83 Ala. 40 | Ala. | 1887

SOMEBTVTLLE, J.'

— 1. In prosecutions for rape, it is not denied, and in fact may be said to be universally conceded, that the State may, on the direct examination of the prosecutrix, prove the bare fact that she made complaint of the injury, and when and to whom, and she may be corroborated by the person to whom she complained as to the same fact. As to whether the details, or particular facts of the complaint, can be proved, there is some conflict of authority among the decisions outside of this State; some of the most respectable courts holding, that such evidence is admissible *44to show the nature of the complaint, and the probability of its truth. — Benstine v. State (2 Lea, 169); s. c., 31 Amer. Rep. 593; Woods v. People (55 N. Y. 515); s. c., 14 Amer. Rep. 309; State v. Kinney (44 Conn. 153); s. c., 26 Amer. Rep. 436.

The rule in this State, however, following what is believed to be the weight of authority both in England and America, is settled the other way. When the complaint does not constitute a part of the res gestae, but is received only ’in corroboration of the prosecutrix’s testimony, the general rule is, that the details or particulars can not be introduced, in the first instance, by the State. This ;would exclude any statement'made in the complaint-pointing out the identity of the person 'accused, or explaining the injuries claimed to have been received during the alleged perpetration of the crime, or otherwise giving the minute circumstances of the event. Griffin v. State, 76 Ala. 29, and cases there cited; Hornbeck v. State (35 Ohio St. 277); s. c., 35 Amer. Rep. 608; People v. Mayes, (66 Cal. 597); s. c., 56 Amer. Rep. 126; Oleson v. State (11 Neb. 276); s. c., 38. Amer. Rep. 266; 1 Whart. Cr. Law (9th Ed.), § 566.

But there are two cases at least where, under the authorities, the details of such complaint may be proved: (1.) They may be elicited, on cross-examination, by the defendant; and where this is done only in part, the State may then proceed to prove, on the rebutting examination, the whole complaint. (2.) Where the testimony of the prosecutrix is sought to be impeached, by attempting to discredit her story, it is permissible, by way of corroboration, for the State to prove such details, and, according to many of the authorities, also to prove that she told the story the same way to others, confirmatory of her first statement. — Griffin v. State, 76 Ala. 29; 3 Greenl. Ev., § 213; Pleasant v. State, 15 Ark 624; State v. DeWolf, 8 Conn. 93; State v. Laxton, 78 N. C. 564; 1 Whart. Cr. Law (9th Ed.), § 566, note 2, p. 525.

Under these rules, it was permissible for the State to prove, by the witness Alfred Norman, the full particulars of the 'complaint made to him by the prosecutrix. Her testimony had been impeached by the defendant, and his counsel had also disclosed, on cross-examination, a part of the details of her complaint'made to this same witness. The State was entitled to bring out the whole conversation, either by Norman or the prosecutrix; and this was permissible on the further principle of corroboration, as above stated.

*452. If the fourth charge requested by the defendant had gone no further than to assert that evidence of a defendant’s good character was admissible, not only where a doubt exists on the other proof, but to generate a doubt of his guilt in the minds of the jury, its refusal would have been error. Williams v. State, 52 Ala. 411. The charge went further, however, by deciding on the sufficiency of such evidence; and for this reason was properly refused, as an invasion of the province of the jury.

3. The fifth and ninth charges selected parts of the evidence, disconnected from other parts bearing on the same questions, and instructed the jury as to the inference which they would justify. Such charges have often been held to be erroneous, to say nothing of their mere argumentative character, and should always be refused. — Finch v. State, 81 Ala. 41; Hancock v. Kelly, Ib. 368; Jordan v. State, Ib. 20; McPherson v. Foust, Ib. 295.

4. The sixth instruction infringed upon the prerogative of the jury, by asking the court to charge on the weight of the evidence. It is for the jury, not the court, to say whether the inference to be drawn from the evidence is strong or weak. — Shealy v. Edwards, 75 Ala. 411, 419.

5. In prosecutions for rape, it is very proper for the jury to be exceedingly cautious how they convict a defendant on the uncorroborated testimony of the prosecutrix, especially when there is evidence tending to impeach her credibility; for the experience of the courts in modern times has amply attested the assertion of Lord Hale, that the charge of rape is “an accusation easy to make, and hard to be proved, and harder still to be defended by the party accused, though never so innocent.” — -1 Hale, 635. But there is no rule- of law which forbids a jury to convict one charged with this crime, on the uncorroborated testimony of the prosecutrix, although she be impeached for ill-fame in chastity, or otherwise ; provided they be satisfied, beyond a reasonable doubt, of the truth of her testimony. — Boddie v. State, 52 Ala. 395; 2 Bish. Cr. Proc. (3d Ed.), 968. If this were not so, one of the most detestable' and atrocious of all crimes known to the law might often go unpunished, as the perpetrators of this offense almost invariably seek to carry out their purpose when their victim is alone and unprotected. It is manifest, under this principle, that the seventh charge was properly refused, which advised the jury not to convict unless the testimony of the prosecutrix was corroborated by an exam*46ination o£ her person by medical, or other experts, and that her refusal to submit to such examination would subject her evidence to discredit. However forcible such a suggestion may be, under some circumstances, as an argument to a jury, the law does not require it. — 1 Wharf. Cr. Law (9th Ed.), § 565.

6. The record shows that copies of both the venire and of the indictment were each served on the defendant, as required by the statute. It was no objection that the copy of . the indictment was served at one term of the court, and that of the list' of jurors contained in the venire at another term. No objection to this procedure, moreover, was taken in the court below, before entering upon the trial; and this operated as a waiver of the alleged irregularity, if such it could be called. It could no more be raised on motion for arrest of judgment, than it could on appeal for the first time. — Lewis v. State, 51 Ala. 1; Miller v. State, 45 Ala. 24; Evans v. Slate, 62 Ala. 6; Code, 1886, (2 Vol.), § 4449, cases cited in note.

We discover no error in the record, and the judgment must be affirmed.