McGuff v. State
88 Ala. 147
Ala.
1889
Check Treatment
SOMERVILLE, J.

1. The indictment is found under section 3739 of the Criminal Code, which provides that “any person, who has carnal knowledge of any female under ten years of age, or abuses such female in the attempt to have carnal knowledge of her, must, on conviction, be punished, at the discretion of the jury, either by death, or by imprisonment in the penitentiary for life.” — Orim. Code, 1886, § 3739. The indictment charges, in proper form, that the defendant “did carnally know, or abuse in the attempt to carnally know Cora Bishop, a girl under the age of ten years.” It follows the form prescribed by the Code by literal compliance, and is therefore sufficient. — Myers v. State, 84 Ala. 11.

*1502. It is objected, that tbe verdict o£ tbe jury should have specified which of the disjunctive offenses charged in the indictment the defendant was convicted of, and that a general verdict of guilty is erroneous, and proper ground for reversal of the judgment. The offenses, thus charged disjunctively, are of the same character, and subject to precisely the same punishment. They could, therefore, be charged in the same count in the alternative. — Crim. Code, 1886, § 4385; Horton v. State, 53 Ala. 488. Where this form of indictment is authorized, we have uniformly held that a general verdict of guilty is not ground of error, or for motion in arrest of judgment. — Johnson v. The State, 50 Ala. 456; Cawley v. The State, 37 Ala. 152.

3. The jury had the discretion, under the statute, to fix the punishment, either by death, or by imprisonment in the penitentiary for life. They adopted the latter alternative, fixing the penalty at “imprisonment for life,” without specifying the place of imprisonment. The court properly sentenced the defendant to imprisonment in the State penitentiary, for and during his natural life. The statute fixed the place, and it could not have' been elsewhere. — Crim. Code, 1886, §§ 3739, 4492; Gunter v. State, 83 Ala. 96.

4. The refusal of the court to put the witness Bishop, the father of the injured girl, under the rule, by compelling his withdrawal from the court-room during the child’s examination, was a matter within the sound discretion of the trial court, and is not subject to our review on appeal. — Ryan v. Couch, 66 Ala. 244; 1 Greenl. Ev. (14th Ed.), §431.

5. It is objected that the witness Cora Bishop, upon whose person the alleged abuse was practiced, was incompetent on account of her tender years, and her inability to comprehend the nature and binding obligation of an oath. . She is shown to have been between seven and eight years old at the time she was examined. There is no particular age at which a witness may, in all cases, be pronounced legally competent or incompetent to testify. This would be unwise, not only because children differ greatly in powers of observation and memory, but because such a rule would practically “proclaim immunity to certain offenses of a serious nature against the persons of children, which it is next to impossible to establish without receiving their account of what has taken place,” as the one here under consideration. 1 Best on Ev. (Morgan’s Ed.) §151. This is especially true in view of the frequency of rapes upon very young *151children, to which writers on medical jurisprudence have often taken occasion to call attention; which has been accounted for, not alone by the comparatively less danger of exposure and conviction attributable to the mental and moral deficiency of such children as witnesses, but “by the comparative ease with which a child’s resistance may be overcome, and by its entire ignorance of the nature and consequence of the sexual act.” — 3 Whart. & Stille’s Med. Jur. § 217. These facts are eminently proper to be considered by courts in the formulation of a correct rule of evidence on this subject. This court has accordingly followed, in substance, the rule laid down in Brasier’s Case (1 Leach, O. L. 199; 1 East, P. O. 443), where it was held that there was “no precise or fixed rule as to the time within which infants are excluded from giving evidence, but their admissibility depends upon the sense and reason they entertain of the danger and impiety of falsehood, which is to be collected from their answers to questions propounded to them by the court.” — Kelly v. The State, 75 Ala. 21; Morea’s Case, 2 Ala. 275; Wade’s Case, 50 Ala. 164; Carter’s Case, 63 Ala. 52; 35 Amer. Rep. 4; Beason’s Case, 72 Ala. 191; Bapelje’s Grim. Prac. § 298. If the promise to tell the truth, in other words, is made under an immediate sense of the witness’ responsibility to God, and with a conscientious sense of the wickedness and danger of falsehood, this would seem to be all that is requisite for the accomplishment of justice. — 1 Greenl. Ev. (14th Ed.) §§ 328, 368.

The examination of the witness by the circuit judge disclosed on her part a very intelligent comprehension of the belief that falsehood was not only morally wrong, but would be severely punished in the future. She was clearly competent to testify, showing, as she did, neither intellectual nor moral deficiency which would disqualify her, and there was no error in receiving her testimony.

6. We do not doubt the correctness of the court’s ruling in refusing to compel the infant to submit to an examination of her person by medical experts, on motion of the defendant made at the trial. Such a practice has never prevailed in this State, and if adopted as matter of right in all cases of prosecution for rape, the temptation to its abuse would be so great that it might be perverted into an engine of oppression to deter many modest and virtuous females from testifying in open court against the perpetration of one of the most barbarous and detestable of all crimes. We have repeatedly *152held that a conviction for rape may be sustained on the uncorroborated testimony of a prosecutrix, which excludes the idea of any necessity for corroboration by an examination of her person, either by medical experts or others. In Barnett v. State, 83 Ala. 40, we accordingly held there was no error in the trial court’s refusal to advise the jury not to convict, unless the testimony was corroborated by an examination of her person by medical or other experts, and that her refusal to submit to such examination would subject her evidence to discredit. “However forcible,” we observed, “such a suggestion may be, under some circumstances, as an argument to a jury, the law does not require it.”

It is true that, in divorce cases, the courts of this country, and of England, as also of Scotland and Prance, have exerted their jurisdiction to compel the parties to suits to submit to a surgical examination, or inspection of the person, in order to ascertain the fact of incurable impotence, when made the ground upon which the dissolution of the bonds of marriage is sought. This is limited to the necessity of the particular case, and is permitted only to prevent the miscarriage of justice.- — 2 Bishop on Mar. & Divorce (6th Ed.), §§ 590, 599; Anonymous, 35 Ala. 226; Devanbagh v. Devanbagh, 5 Paige’s Ch. 554; 28 Amer. Dec. 443, and note p. 450. So, in- a recent case, cited by appellant’s counsel, in an action of damages for permanent injury to the plaintiff’s eyes, no medical expert having testified, it was held error in the trial court to refuse to make an order, on defendant’s request, to compel the plaintiff to submit to an examination by a medical expert who had been called as a witness, and was then present in court ready to testify. — Atchison &c. Railroad Co. v. Thul, 29 Kans. 466; 44 Amer. Rep. 659. There are many similar decisions, made in modern civil actions for physical injuries, where the cdurts, in proper cases, have compelled the plaintiff, or injured person, to submit his person to the inspection of experts, in order to ascertain the nature and extent of such injuries. — 1 Thomp. on Trials, § 859; Schroeder v. C. R. I. & R. Railroad Co., 47 Iowa, 379; Sibley v. Smith, 46 Ark. 275; White v. Milwaukee City Railway Co., 61 Wis. 536, Hatfield v. St. Paul R. R. Co., 33 Minn. 130; Richmond & Danville R. R. Co. v. Childress, 9 S. E. Rep. 603; Bogers on Expert Test., § 75.

The authority and soundness of these cases need not be challenged, although some courts in this country have declined to follow them. They are cases where the court had *153jurisdiction of the parties to a litigated case pending before it, who were invoking the assistance of its arm in aid of their civil rights. In this case, the witness is no party to any civil suit, but has been summoned at the instance of the State, to testify in a criminal prosecution against an alleged violator of the law. It may be well doubted, in cases of rape, and cognate offenses, whether the court has the power to make an order compelling the inspection of the private person of a prosecutrix, in the event of her refusal to submit to such examination. If such right exists at all, we should hold it to be a matter of judicial discretion with the trial court, to be exercised only in cases of extreme necessity, and not a subject of review on appeal to this court. There being other corroboration of the local marks of violence in this case, made soon after the injuries, no such necessity is made to appear. The proposed examination by medical experts, moreover, not having been suggested until more than a month after the occurrence, could not be expected to afford any very useful results.' — 3 Whart. & Stille’s Med. Jur. § 212. The refusal of the court to grant this motion was free from error.

7. The confessions of the defendant appear to have been made voluntarily, and they were allowed to go to the jury as evidence without objection. It was for the court to determine their admissibility, and this action could not have been reviewed by the jury, although it was within the exclusive province of the jury to determine the weight to which they were entitled as evidence. The charges requested by the defendant in effect denied to the jury any right to consider these confessions as competent evidence in forming their verdict. Their admissibility, as voluntary or involuntary, could not be raised in this way, and the court properly refused to give these charges. — Long v. State, 86 Ala. 36; Nolen v. State, 46 Amer. Rep. 255, note; Redd v. State, 69 Ala. 256.

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