Waller v. State
40 Ala. 325
Ala.
1867
Check Treatment
BYRD, J.

The assignments of error will be disposed of in the order in which they appear upon the record.

1. There is no lаw, or rule of practice, in this State, which requires that the jurors, summoned to try a person charged with the commission of a felony, shall be called at the door of the court-house, or be sent for, when their names are drawn. The court did not err in its ruling on this question.

2. The juror Pierce, according to the answers given to the questions propоunded to him, was properly discharged by the court. — Penal Code, § 630. The more regular course, perhaps, is, fоr the State’s attorney to challenge for cause in such a case; yet, if the court discharges the juror, it is not an error of which the prisoner has any legal right to complain. The court should see that incompetеnt jurors are not put upon the prisoner or the State, and that a fair and impartial trial is had. But it is not the duty of the сourt, ex mero motu, to set aside such a juror. — Murphy v. The State, 37 Ala. 142. To act, or to decline to act, in such a case as this, is not error.

3. The court properly refused to give the first charge asked by the counsel for the appellant. It wоuld be singular if the law should hold a man, who, by force or threats, had sexual intercouse with a female, not guilty of rape, because the force or threats, by which the ‍​‌​​‌‌​‌‌‌​​​‌‌​‌‌​‌​​​‌‌‌‌‌‌‌​‌‌​‌‌‌‌‌​‌​‌‌‌​‌​‍act was accomplished, did not “ create a reasonable apprehension of death” on her mind. Such a proposition cannot be sustained upon any code of ethics or law of any people, heathen or Christian. The question is, did the prisoner havе such intercourse, against the consent of the victim of his brutish passions, and by force. If he did, then he is guilty. — Lewis v. The State, 35 Ala. 380; Murphy v. The *332State, 6 Ala. 770. If the rule prevails as cоntended for by the counsel for the prisoner, it would leave the guilt of the accused to be tested by the reasonableness of the apprehension of the female, as to the force employed or threаtened being such as might produce death, if she did not yield the use of her person to the wicked purposes оf her worst enemy.

4. The other charge asked, was also correctly refused. Under section 642 of the Penal Code, “actual penetration” is sufficient, when the act is shown to have been committed forcibly, and against thе consent of the person on whom the offense wás committed; even if such penetration, under such circumstances, was not sufficient at common law. Lord Hale held that penetration was sufficient. — 1 Hale’s P. C. 628. Lord Coke was of a contrary opinion, and held that the “two proofs” must be made. — 12 Co. 36, 37. But, in Scotland, and in every country in Europe, it has been held that penetration was sufficient.' — -2 Bishop on Criminal Law, § 1085 (944).

Upon reason and principle, it wоuld seem that there ought to be no doubt of the correctness of this position; and it is strange that, in ‍​‌​​‌‌​‌‌‌​​​‌‌​‌‌​‌​​​‌‌‌‌‌‌‌​‌‌​‌‌‌‌‌​‌​‌‌‌​‌​‍any Christian or civilizеd country, a different opinion should ever have obtained any favor or countenance. — 1 East’s P. C. 436, 440; The State v. Sullivan, Addison, 143.

The follоwing authorities fully sustain the position, that under section 642 of the Penal Code, penetration alone is sufficient. — Rex v. Bussen, 1 East’s P. C. 438; Rex v. Jennings, 4 Car. & P. 249; 1 Lewin, C. C. 93; Rex v. Cox, 5 C. & P. 297; 1 Moody, C. C. R. 337; Rex v. Beekspear, 1 Moody’ C. C. R. 342; Brooks’ case, 2 Lewin, C. C. 267: Regina v. Allen, 9 Car. & P. 31.

Prior to thе year 1776, the weight of English authorities was in favor of the opinion of Sir Matthew Hale, as above stated, (1 East’s Cr. Law, 439,) аnd we prefer to follow them, as they were prior to the revolution.

5. The other assignments of error may be disрosed of together, so far as it is necessary to notice them in this opinion. It was erroneous for the cоurt to allow the jury to return their verdict to the clerk, under the facts of this *333case. Tlie counsel had no authority to assent thereto, or to waive the right of a prisoner, ‍​‌​​‌‌​‌‌‌​​​‌‌​‌‌​‌​​​‌‌‌‌‌‌‌​‌‌​‌‌‌‌‌​‌​‌‌‌​‌​‍charged with a felony, to be present When the jury delivеred their verdict to the court. The State v. Hughes, 2 Ala. 102; 2 Hawk. ch. 47; 2 Lead. Crim. Cases, 452; Nomague v. The People, 1 Breese, 109; 1 Chitty’s Crim. Law, 626; 1 Term R. 434; Prine v. Commonwealth, 6 Har. (Pa.) 103; 1 Bish. Cr. Pro. § 688; State v. Buckner, 25 Mis. 168; Eliza v. The State, 39 Ala. 693.

It was also improper to allow the jury to amend their verdict, under the circumstаnces shown by the record.— Vide authorities cited supra; Brister v. The State, 26 Ala. 108. The case last cited does not militate against the views we have taken of this case. And whenever it is allowable for a jury to make an amendment, the record should show affirmatively, in a cаse of felony, that the prisoner was present in court when the instruction was given to the jury to do so, and also whеn they returned with the- verdict as corrected, and delivered it to the court.— Vide authorities, supra.

6. The counsel for the prisoner insists thаt this court ought to order the discharge of the prisoner from custody, on the ground that, upon the verdict as originаlly returned into court, no sentence could have been pronounced, and that he was entitled to judgment оf acquittal thereon. We can not assent to such a proposition. — See The People v. Perkins, 1 Wendell, 91; The State v. Hughes, supra; The State v. Battle, 7 Ala. 259; State v. Williams, 3 Stew. 454; Cobia v. The State, 16 Ala. 781; The State v. Redman, infra; Turner v. The State, at the last term.

The proper distinction, in all such cases, seems to be, that if the jury, by their verdict, ascertain and pronounce the prisoner guilty of the оffense charged, then, although the verdict is otherwise informal or imperfect, and therefore reversible, the prisoner ‍​‌​​‌‌​‌‌‌​​​‌‌​‌‌​‌​​​‌‌‌‌‌‌‌​‌‌​‌‌‌‌‌​‌​‌‌‌​‌​‍is not entitled to be discharged upon a reversal, but may be tried again. If the verdict fails to fix the guilt of thе prisoner, and the jury should be discharged without his consent, and no sentence could be legally pronouncеd on the verdict, then he might be entitled to a judgment of acquittal thereon. There are cases in which a cоurt may set aside a verdict, and order a venire de *334novo; but it is unnecessary for us to decide that the court could or could not have taken such a course in this case.

Upon the above cited adjudications; we hold, that the judgment is rеversible, and the prisoner can be again tried on the same indictment. — The State v. Redman, 17 Iowa R. 330. The case of McCauley v. The State (26 Ala. 126) does not conflict with these views, ‍​‌​​‌‌​‌‌‌​​​‌‌​‌‌​‌​​​‌‌‌‌‌‌‌​‌‌​‌‌‌‌‌​‌​‌‌‌​‌​‍nor overrule the cases of Hughes v. The State, and Cobia v. The State, supra; nor has the case of Battle v. The State ever been questioned by this court, though it has been at the bar, and there is no necessity which requires a review of it in this case.

The judgment of the court below is reversed, and 4the prisoner will remain in the custody of the sheriff until discharged by due course of law.