Griffin v. State, 76 Ala. 29

Griffin v. State

76 Ala. 29 | Ala. | 1884

CLOPTON, J. —

On an indictment for rape, it is competent to show by the prosecutrix, or by another, or by both, that re-1 cently after the alleged rape she made complaint to persons to whom complaint, on the occurrence of such outrage, would naturally be made. When the complaint constitutes no part of the res gestie, and is received only as corroborative of her testimony, neither the particulars detailed by her, nor the name of the person whom she mentioned as the offender, can be given *32in evidence in the first instance. But the defendant may, on cross-examination, inquire into the particulars of the complaint, and thus make admissible evidence relating thereto by both parties; or, if the defendant introduces evidence to impeach the prosecutrix, the prosecution may sustain her by showing that her statements in making the complaint, and her testimony on the trial, correspond. — Scott v. State, 48 Ala. 420; Nichols v. Stewart, 20 Ala. 358 ; Thompson v. State, 38 Ind. 39 ; Baccio v. People, 41 N. Y. 265; 3 Greenl. on Ev. § 213; 2 Bish. Crim. Proc. § 963.

The defendant, on the cross-examination of the prosecutrix, inquired into the particulars of her conversation with Worthy and the other persons mentioned, and also laid the predicate for her impeachment; and subsequently the defendant examined the others present at the conversation, for the purpose of impeaching the prosecutrix. Some authorities hold, that when the defendant inquires into the particulars, and impeaches the prosecutrix, she may be sustained by evidence that she has stated the facts to other persons as she testified at the trial; but it is not necessary for us to express any opinion on the competency of such evidence. It will not be disputed, that, in such case, it is competent for the prosecution to introduce persons other than the impeaching witnesses, who were present and heard the same conversation, for the purpose of supporting the prosecutrix.

If it be conceded that the examination of Worthy was irregular, because of the stage of the trial at which it occurred, and that his testimony was prima facie irrelevant, it became relevant' by the subsequent attempt to impeach by proving contradictory statements. It is well settled, that if evidence, which is irrelevant at the time offered, becomes relevant after-wards during the progress of the trial, its admission is not an error for which the judgment will be reversed. — Johnson v. State, 29 Ala. 68; Robinson v. Allison, 36 Ala. 525.

There is no error in the observation made by the presiding judge, that there was evidence of complaint having been made by the prosecutrix, and that the prosecutrix and her father had testified on that subject; but', what that testimony proved was for the jury to determine. The remark seems to have been made in reply to a suggestion that there was no such evidence. “Whether there be any evidence or not, is a question for the judge; whether it is sufficient evidence, is a question for the jury.” — 1 Greenl. on Ev. § 49.

Affirmed.