56 So. 85 | Ala. Ct. App. | 1911
The defendant was indicted for rape, was tried and convicted, and was sentenced to the penitentiary for 10 years.
The act approved August 31, 1909 (Acts 1909 [Sp. Sess.] p. 305), and known as the jury law, does not intend to affect, nor does it in any way affect, the right of the state or the defendant in a criminal case to challenge a juror for any cause of challenge existing under the laws of the state at the time of its adoption. While the right of peremptory challenge does not now exist in criminal cases, the right of challenge for cause remains undisturbed.
Section 32 of the act above referred to says, in express terms, that in all cases of misdemeanor, and in all cases' of felony not punished capitally, the court shall require two lists of all the regular jurors for the week, who are competent to try the defendant, to be made, one for the solicitor and the other for the defendant, and from the lists thus made up the jury to try the case shall be chosen. In capital cases, the same section of the act provides for similar lists to be made for the solicitor and the defendant, after the court has inquired in
The fact that a person called as a juror is not a citizen of the county in which the defendant is tried is cause for challenge, both on the part of the state and the defendant. The objection, however, that cause for such challenge existed comes too late when it is not made until after the verdict has been rendered. The defendant, may, if he sees proper so to do, move the court for a new trial on this ground, but the action of the trial court in granting or refusing to grant a new trial in a criminal case on this, or any other, ground, in this state is in the irrevisible discretion of the trial court. That the refusal of a new trial in a criminal case cannot be made the subject of review on appeal has been repeatedly held, and is the settled law of the state. It can only be changed by statute, or by a decision of the Supreme Court overruling all of its former decisions on the subject.—Ferguson v. State, 149 Ala. 21, 43 South. 16; Tom Scott v. State, Infra, 56 South. It therefore follows that the court below cannot be put in error for refusing to grant appellant a new tidal on the
The court, when it fixed the day for the trial of this defendant, made an order that his venire should consist of 88 jurors, 50 special jurors and 88 regular jurors, drawn and. summoned for the week in which his case was set for trial. The jury for the week in which defendant’s case was set for trial had not been impaneled when the day was fixed for defendant’s trial, and he was served by the sheriff, as the law required, under the order of the court, with a copy of the indictment and with a list of the 88 jurors constituting the venire for his trial. When the regular jurors for the week during which defendant was .tried were impaneled and sworn as jurors for the week, only 26 of the 38 were actually impaneled, the record affirmatively showing that the court, for good cause shown, excused 11 of the jurors from jury service, but it is silent as to why only 26, and not 27, which, with the 11 who were excused, would have made the 38 drawn and summoned, were impaneled as jurors for the week. It may be that, when the court had the jury Sworn and impaneled, one juror had left the courtroom and could not be found, or that, for some other good and valid reason, the court failed to require him to be impaneled as a juror. It is, however, unnecessary for us to speculate about the matter, for the simple reason that we find nothing in the circumstance of which, under the facts disclosed by the record, the defendant can be heard to complain. There is nothing in our jury law requiring the trial court to show bv its records its reasons for not having a juror drawn and summoned for a particular week actually placed on a panel and sworn as a juror for the week for which he was drawn and summoned, and so far as this
Rape, as defined by Blackstone, is the carnal knowledge of a woman, forcibly and against her will. The definition given by Mr. Bishop is that rape is the having of unlawful carnal knowledge by a man of a woman forcibly, where she does not consent. Force, overcoming the resistance of the woman, is an indispensible element of rape, unless the woman is an idiot, or is subdued by fraud, or is overcome by drugs or drinks, or their equivalent. The consent of the woman, yielded at any time before the act of penetration is complete, relieves the offense of its felonious character.—Dawkins v. State, 58 Ala. 376, 29 Am. Rep. 754. Force, actual or constructive, is an indispensable element of the crime of rape, and acquiescence obtained through duress or by putting the woman in fear is constructive force. In the present case, the evidence for the state tended to show that the defendant, by putting the prosecutrix in fear of her life or of great bodily harm at his hands, had sexual intercourse with the prosecutrix against her will.
While the law arms a woman' who is assaulted by a man with the intent to ravish her with the right to stand her ground, and, if necessary, to kill her assailant to protect her person from the gratification of his lust, the law does not compel her so to do. All of the circumstances surrounding the commission of the alleged crime are to be considered, and 'whether the prosecutrix does or does not repel force by force, or resist her assailant to the uttermost, if the act of penetration is actually accomplished by what, in law, amounts to legal force, and
In all prosecutions for rape, it is competent to impeach the general character of the prosecutrix for chastity, and, if she testifies as a witness, her general character for truth may be impeached. That the prosecutrix is unchaste is permitted to he shown, because such evidence hears on the probability or improbability of her consent to the alleged act of intercourse, and that she is of had character for truth and veracity, when she testifies as a witness, as bearing on the weight to be given to her testimony. She may be of ill fame for chastity and for truth, “but she is stiff under the protection of the law and not subject to a forced violation of her person for the gratification of the propensities of the man who has. the strength to overpower her.” —Boddie v. State, 52 Ala. 395; Griffin v. State, 155 Ala. 88, 46 South. 481. In passing on the weight to he given the testimony of the prosecutrix in this case, the jury had the right, if, considering her reputation for unchastity and for untruthfulness, along with the other evidence in the case, they believed it to be true as a whole, to accept it as true, or if they believed it to be untrue, in whole or in part to reject it in whole, or to accept such parts as they believed to be true, and to reject such parts as they believed to he untrue.
While the testimony of the prosecutrix in this case was contradicted in every essential point, it was also
For the reasons given in sections 3 and 4 of this opin-' ion, the court committed no error in refusing to give to the jury the first, second, and fourth charges requested in Avriting by the defendant.
The third charge requested by the defendant, which the court refused to give, states, as applied to the evidence in this case, a correct proposition of la.AV, but it singles out a part of the evidence, and belongs to that class of charges which a trial court may or may not, in the exercise of its discretion, give to a jury.
It follows, therefore, that the record fails to show any error in the trial of the defendant in the court below, and that the judgment of the court beloAV must be affirmed.
Affirmed.