Jones v. State
104 Ala. 30
Ala.
1893
Check Treatment
HARALSON, J. —

1. It is hardly necessary to say, that a motion for a new trial in a criminal case is a matter within the discretion of the court to grant or not, and its denial cannot constitute a ground for error in this court.

2. A mistake in the given name of W. A. Ticer, one of the persons composing the venire served on the defendant for his trial, was no ground for a motion to quash the venire. The name could have been discarded, on motion'of the defendant, and another juror summoned in his stead, but no such motion was made. — Code, § 4322 ; Roberts v. The State, 68 Ala. 156. Nor was it any ground to quash the venire, because two of the persons constituting the venire had served as jurors within twelve -months last past. — Arp v. The State, 97 Ala. .5 ; Gibson v. The State, 89 Ala. 121; Fields v. The State, 52 Ala. 348.

3. The 4th and 5th grounds urged for quashing the ■venire were the same in substance, and each without •■merit. If the requirement of the statute, that the residences of the. jurors composing the venire -shall be stated, As--mandatory, whi-cli'we domot now deeide,--it ■ appears ''t-ha-t 'Opposite -feke-nam’e of eáehrjurof was'-a * -figure, -fu-n*33ning from 1 to 13, with a mark in front of each- — thüs =11= — which number and mark, the bill of exceptions states, the court inspected and decided, that they meant the number of the precincts in which the jurors lived; and we think this was a fair interpretation of these signs, such as any reasonable person would put upon them, and by which he could not be misled. It would be better, however, to give the name of the city or town, fully written out, and in case the residence is indicated by the beat in which one resides, to write the word, “Beat” before its number.

4. There was no error in allowing the State to ask the witness, Leona Pool, the party alleged to have been ravished, whether or not she consented for the defendant to have sexual intercourse with her. This question was asked on rebuttal, on cross examination, after the witness had stated facts, brought out by the defense, for the purpose of showing that she had consented.. The want of consent on the part of the party alleged to have been raped, is an essential constituent of the crime, to be proved by the prosecution, and is a fact, to which the woman may swear, to be weighed in connection with all the other evidence tending to show consent. — McQuirk v. The State, 84 Ala. 435; Allen v. The State, 87 Ala. 107.

5. The court allowed the prosecutrix, Leona Pool, to prove, against the.objection of the defendant, why she was absent at the last term of the court; that her grandmother, Emily Conner, and her sister, Ida Moore, with whom she lived, had made her go the country, some six „or seven miles away. The court stated to the jury, that it admitted this evidence, “to. show the interest of Emily Conner and Ida Moore — witnesses subpoenaed, and afterwards examined for the defendant in this case — to go to the weight of their testimony and for no other purpose.” It is not shown that defendant had any connection with or knowledge of the prosecutrix having gone to the country, and the evidence was admissible against him for'no conceivable purpose. If confined to the purpose for which the court said it admitted it, it was equally inadmissible. The two witnesses whom the court intended the'evidence to impeach; had not been examined, and no predicate, had been laid for any such impeachment . ' •'..... ..... ■...... '. "

6. The defendant proposed to prove by said Emily *34.Connor, that she suspected said Leona of having' illicit intercourse with the defendant and warned her against it, and of its consequences to her, and if she had made any and what effort to prevent prosecutrix from going out with defendant, and what Leona did. The court, on the objection of the State, refused to allow the evidence to be introduced. In these rulings there was no error. These were mere hearsay, and res inter alios. It might have been competent, as implying consent, to prove the facts tending to show familiarity and improper relations between defendant and the prosecutrix, before the alleged rape, but not the suspicions of the witness and conversations between her and prosecutrix. — Allen v. The State, 87 Ala. 107.

7. The defendant offered to prove the character of Gip Pool — a witness for the State, who had testified against him — by J. J. Mitchell, who testified, that he had lived at- Florence for many years, and had known Pool for more than 20 years ; that seven or eight years ago, he was well acquainted with the character and reputation of said Pool in the community in which he resided, but as Pool was a common negro, he had seen and heard but little of him, and could not; say that he now knew his character and reputation, though they both lived in the same community. Although it is not expressly so stated, it is to be fairly inferred from the evidence of the witness, that he and Pool had lived together in Florence for more than twenty years. The court decided he was not competent to prove the character of said Pool. ' In this the court erred. The evidence offered was competent as tending to show the witness’s present character in the neighborhood. The length of time intervening, from the time in the past — some seven or eight years — when the witness knew and could prove what the character of .said Gip Pool was, did not render his evidence incompetent, but-was a fact ,to which the jury might look, in determining what weight they would give to it. — Martin v. Martin, 25 Ala. 210; Sleeper v. Van Middlesworth, 4 Denio, . (N. Y.) 481; Lawson on Presumptive Ev., 181. There is nothing in the case of Kelly v. The State, 61 Ala. 19, referfed to by counsel,’opposed to the conclusion here’ expressed. . ■'•-

In this connection, the defendant asked the witness, Martin, ‘ 'whether or not he. had ever heard of any change *35or improvement in character or reputation for truth and veracity of the said Pool?” which question the court refused to allow to be answered. There had been no evidence introduced, to show what his previous character was. In this there was no error. The question does not come within any of the recognized rules of proving character.

For the error pointed out the judgment of the court below is reversed.

[Reversed and remanded.