Smith v. State

47 Ala. 540 | Ala. | 1872

B. E. SAEEOLD, J.

The appeal is from a conviction and sentence for rape.

The record recites that the jury was “ sworn and impanneled well and truly to try the issue joined between the State of Alabama and the prisoner at the bar.” • An essential portion of the oath required to be taken was omitted. Joe Johnson v. The State, 47 Ala. 9.

The question objected to as leading, is not so. It is a' direct inquiry concerning the existence of an indispensable fact.

The general- rule is, that the prosecutor can not enter into an examination of particular acts of the accused, even when the latter has called witnesses in support of his general character. Nothing appears in the record to show that the act inquired about is an exception. — Archb. Crim. Pl. p. 123, n. 4.

The declarations of the party charged to have been injured, which a witness was allowed to state, are not set out, beyond her request to the witness to go to the magistrate and report the offense. It was competent to prove that she made speedy complaint of the injury done-her.

It was competent to sustain the general character of the female injured, which had been assailed by the defendant, especially as she was a witness.

The indictment charges but one offense, though the evidence tended to prove several repetitions of it. The rule in such a case is to hold the State to the act to which the testimony relates, if it can be covered by tbe indictment. After tbe election is once made by offering evidence on tbe part of tbe State, it bolds through all future stages. — Elam v. The State, 26 Ala. 48. This is necessary in order not to confuse tbe prisoner in bis defense, and also to leave him subject to indictment for tbe other offenses. It can not prejudice tbe prosecution to require tbe election to be made at any stage of tbe trial before tbe jury retires, because some one act must be proved beyond a reasonable doubt.

It is not necessary to consider minutely tbe charges asked by tbe defendant which were refused. Whether proper or not, they lack precision of expression. For instance, it is not clear whether tbe last one means that tbe good character which tbe defendant bad proved on tbe trial was sufficient to generate a doubt of bis guilt, notwithstanding tbe evidence against him, or that tbe proof of good character may be such as to generate a doubt. Tbe latter conforms to tbe rule in Felix v. The State, 18 Ala. 720. Tbe second is defective in tbe expression of tbe 'time when tbe defendant was diseased. As to tbe first, duress, in a case of this kind, is a reasonable fear of serious personal injury; tbe age, sex, state of health, temper and disposition of tbe party, and other cb’cumstances calculated to give greater or less effect to tbe violence or threats, being taken into consideration.

Tbe judgment is reversed, and tbe cause remanded.