46 So. 481 | Ala. | 1908
From a judgment of conviction, and sentence to imprisoment in tbe penitentiary for a period of 15 years, for tbe crime of rape, this appeal was taken by the defendant.
Tbe testimony for tbe state tends to show that on tbe 4th day of April, 1907 tbe defendant knocked tbe pros-ecutrix (Florence Gardner) down with a stick, and without her consent bad sexual intercourse with her. Tbe testimony for tbe defendant tends to show that, though defendant bad intercourse with tbe prosecutrix, it was with her consent. Tbe testimony of tbe prosecu-trix showed that, after she got loose from tbe defendant, she ran to where her father was working, and tbe defendant went to her house and left tbe stick Avith which be ■struck her on tbe porch. Tbe court committed no error in refusing to exclude this testimony. Neither was there
On her examination in chief the prosecutrix testified that she had never had intercourse with any man before the defendant ravished her; but at the time she so testified there was no evidence in the case tending to show consent on the part of the prosecutrix. In McQuirk's Case, 84 Ala. 435, 438, 4 South. 775, 776 5 Am. St. Rep. 381, it is said: “That the prosecutrix was a woman of chaste or unchaste character was perfectly competent evidence, under all the authorities, as bearing on the probability or improbability of her consent to the alleged act of intercourse with the defendant. The impeachment of her character in this particular must, however, be confined to general evidence of her reputation. Particular instances of her unchastity cannot be proved for this purpose, except that she can be interrogated as to hér previous intercourse with the prisoner, although not to particular instances with third persons.” — Boddie’s Case, 52 Ala. 395, 398; Roscoe’s Criminal Ev. § 881. In this view of the law, it must be conceded that the evidence of the procecutrix was not only premature, but in the form given was illegal. But it was injected into the case by the state without objection, and if the cross-examination had been confined to acts of intercourse by prosecutrix with other men prior to the alleged assault made on her by the defendant there could be no doubt of the defendant’s right to such cross-examination, and doubtless the circuit judge would have recognized that right. But the questions asked on the cross included acts with third persons subsequent to the alleged assault by the defendant, and therefore went beyond the illegal evidence of the prosecutrix: “I have never had intercourse with any man until the defendant took it from
Lap sidy Gardner testified 'that the 'defendant .was hiding out; that he and the sheriff could not find him. He was then asked by the solicitor,. “Where was the defendant on the nig’ht he was arrested?” To the question he answered, “I obtained information that he was at a tenant’s house back near the swamp.” Clearly this answer is hearsay, and the refusal of the court to exclude it must work a reversal of the judgment of conviction.
It is unnecessary to consider the refusal of the court to exclude the argument made by the solicitor as it is hardly probable that the question will arise on another trial. For the error pointed out, the judgment is reversed, and the cause remanded.
Reversed and remafided.
