Watts v. State

63 So. 18 | Ala. Ct. App. | 1913

PELHAM, J.-

No abuse of the court’s discretion is shown by the statements set out in the bill of exceptions relating to the court’s refusing to grant the defendant a continuance on account of the absence of some of his witnesses. No motion or request of any kind is shown to have been made for compulsory process to require the attendance of any of these witnesses, and the state admitted the prepared statements of the defendant as to what the witnesses Avould testify, if present.

The court had a right to excuse the juror Fowler from further attendance upon the court, and permit him to go home because of his house having been destroyed by fire. This action of the court was taken before the defendant’s case was called for trial, and the objection of the defendant that the court had excused this juror without his consent, and that the name of the juror Fowler was eliminated from the jury list from which he was required to select a jury is without merit. — Nordan v. State, 143 Ala. 13, 39 South. 406 Williams v. State, 147 Ala. 10, 41 South. 992; Williams v. State, 144 Ala. 14, 40 South. 405.

The only material difference between the evidence for the state and the defendant, as set out in the record, is the denial of the defendant that he was under promise of marriage to the girl at the time of the wrongful act; the testimony of the prosecutrix being that the illicit-intercourse was the result of a promise of marriage. The defendant admitted the acts of sexual intercourse testified to by the prosecuting witness, and admitted that he had been engaged to marry her, but testified that at the time he first had sexual intercourse with her the engagement had. been dissolved and broken off, and that it had not been renewed at any time after it was broken off some months prior to the first act of intercourse, and that he had not persuaded the girl to surrender her chastity to him by promise of marriage, or by any of the other means specified in the statute (Code, § 7776). The only question at issue, then, was whether or not the wrongful act was accomplished by means of a promise of marriage, and rulings on the evidence, not having a bearing on this question, were not prejudicial to the defendant.

If the first statement of the prosecuting witness, “He asked me to marry him,” was objectionable as being too broad in covering too long and indefinite a period of time, it was immediately rendered harmless in this particular by the witness further stating the exact time and place when this took place. There was no error in the court’s permitting this witness to testify that she had lost the engagement ring given to her by the defendant; that it had been taken from the place where she kept it in her home, during her absence. The fact that the defendant had given her the ring was not disputed, but, on the contrary, was admitted by the defendant. The testimony of the prosecuting witness of having seen the defendant since the night when she first yielded to him, and what he said in regard to the relations existing between them on those occasions, was relevant, and properly admitted. The only act of permissive intercourse with the defendant, as testified to by the prosecutrix, occurred on the occasion, when returning alone with the defendant in a buggy from a visit to a sick person, in March, 1912. It was certainly a question for the jury to say whether or not the prior occurrences she testified to were such as to show an unsuccessful attempt by the defendant to have sexual intercourse, or consent on her part to the act, or an accomplishment of the act by force and against her will. If accomplished by means of force on the part of the defendant and against her will, she was still chaste within the meaning of the statute, and the offense might then be predicated upon the subsequent act of sexual intercourse in March, accomplished then for the first time, according to her statement, with her consent, and induced by promise of marriage. — Pope v. State, 137 Ala. 56, 59, 34 South. 840. Under the facts in this case the question was one for the jury, and the case is distinguishable from those cases where it is held to be error to allow the person alleged to have been seduced to testify to subsequent and continuing acts of sexual intercourse with the defendant after she had unequivocally testified to such an act with her consent, induced by promise of marriage, or other means designated by statute. In such a case the state may be held to an election; but not so under the facts as presented in the instant case, where the state had offered no positive evidence, prior to the wrongful act in March, identifying the act as one of seduction constituting the offense for which the defendant was being tried.

There was no error in allowing a visual inspection of the child by the jury, or in permitting the prosecuting witness to testify that the defendant was the father of her child. — Kelly v. State, 133 Ala. 195, 32 South. 56, 91 Am. St. Rep. 25; State v. Horton, 100 N. C. 443, 6 S. E. 238, 6 Am. St. Rep. 613.

The testimony of the mother of the prosecuting witness that the defendant visited her daughter, and that she had seen her (prosecutrix) wearing the ring that the defendant admitted having given to her, and what the defendant said to her (the mother) about his engagement to tbe daughter, was relevant, and properly admitted in evidence.

Other rulings on the evidence to which exceptions were reserved are clearly without error.

The evidence before the court was amply sufficient to justify a finding of guilt, and the general charge requested in writing by the defendant was properly refused.

Charge 2 is patently bad.

Charges 3, 4, 5, 6, 7, 8, 14, and 15 are instructions to the effect that there is no evidence of certain facts before the jury, or that certain facts are no evidence of some other fact or matter. The court cannot be put in error for refusing charges instructing the jury that there is or is not evidence of certain facts. — Hall v. State, 156 Ala. 3, 46 South. 864; Western Steel Car Foundry Co. v. Cunningham, 158 Ala. 369, 48 South. 109; So. Ry. Co. v. Hobson, 4 Ala. App. 408, 58 South. 751; N. C. & St. L. R. R. Co. v. Hinds, 5 Ala. App. 596, 59 South. 670.

Charge 9 is covered by given charges 10 and 12.

Charge 10 invades the province of the jury.

Charges 11 and 12 are erroneous, in that they each require the court to charge the jury what their duty is with respect to a consideration of a part of the testimony. They also single out a part of the evidence for special consideration. A charge which singles out part of the evidence, and instructs that an acquittal should be had upon a consideration of the evidence specially referred to in connection with the other evidence in the case, is- bad. — Hosey v. State, 5 Ala. App. 1, 59 South. 549.

Charge 13 is patently bad, as the bill of exceptions states that all questions of venue were admitted.

Charge 16 is covered by given charges 9, 23, and 24.

Charge 17 invades the province of the jury. The correct propositions contained in this charge are covered by the given charges.

Charge 18 as set out is faulty in construction, and unintelligible.

The charges given at the request of the state as referred to the evidence are correct statements of the law, and there was no error committed in giving any of them. — Cunningham v. State, 73 Ala. 51; Allen v. State, 162 Ala. 74, 50 South. 279, 19 Ann. Cas. 867.

The case presented does not show reversible error, and an affirmance must follow.

Affirmed.