Mosley v. State, 2 Div. 157.

• Decision Date: 10 April 1941
• Docket Number: 2 Div. 157.
• Citation: 1 So.2d 593,241 Ala. 132
• Parties: MOSLEY v STATE.
• Court: Alabama Supreme Court

1 So.2d 593

241 Ala. 132

MOSLEY v STATE.

2 Div. 157.

Supreme Court of Alabama

April 10, 1941

Walter P. Gewin, of Greensboro, and E. F. Hildreth of Eutaw, for appellant.

Thos S. Lawson, Atty. Gen., and Wm. H. Loeb, Asst. Atty. Gen., for the State.

GARDNER Chief Justice.

The appeal is from a conviction for the offense of rape with penalty fixed at imprisonment for a period of twenty-five years. Defendant, a young man about twenty-three years of age, met the prosecutrix, a young woman nineteen years of age, on one Sunday night in Eutaw at what is known as the Snack Shack Inn, where there was eating, drinking and dancing. Neither defendant nor the young woman, however, were shown to have been engaged in drinking or dancing, though they appear to have been eating together with others at the same table.

We omit details as unnecessary here to relate. Suffice it to say prosecutrix testified that about ten o'clock that night she was driven in a car in which was defendant and his friend out on the road where defendant by force and with the assistance of his companion had sexual intercourse with her. Defendant admitted the intercourse but insisted there was no force used and that the act was entirely voluntary.

The two then carried her to her home where her father and sister lived. Her father was at home when she reached there Sunday night just after the alleged offense and though he was absent at work the following Monday was at home Monday night. She made no complaint to him but states she did complain to her brother, who lives fifteen miles from her home in Eutaw, on Tuesday following the Sunday night in question. In company with her father and sister-in-law she went to the family physician on Wednesday following this Sunday night. There was no error in overruling defendant's objection to the testimony of the physician to the effect that in his opinion, upon such examination this was the first intercourse prosecutrix had experienced. 52 C.J. 1085, and authorities cited in note.

It appears defendant lives at Akron in the same County as Eutaw. Prosecutrix testified that on Wednesday at one o'clock following the Sunday in question she went to Akron with her sister-in-law and stayed about thirty minutes. Defendant then on further cross-examination asked if it was not a fact she did not make this complaint "against defendant until after the trip to Akron". The State's objection was sustained, and likewise objections to questions which sought to elicit when and before whom she "swore out the warrant" for defendant's arrest, were sustained. The materiality of evidence as to a delay on the part of the prosecutrix in making complaint is well recognized. 52 C.J 1069. And we think it clear enough these rulings too narrowly restricted defendant in his cross-examination of the witness and constituted error. Barnett v. State, 83 Ala. 40, 3 So. 612; Wilson v. State, 195 Ala. 675, 71 So. 115. But appellant introduced the affidavit and warrant which disclosed the date of its issuance as on Wednesday, though nothing was stated by any witness as to whether or not this was before or after prosecutrix had made the trip to Akron.

However, defendant's record must not only show error, but that such error probably injuriously affected some substantial right. The question upon its face gives no indication of its purpose nor was the purpose otherwise disclosed. There is no indication in the record what was the connection between the trip to Akron and the swearing out of the warrant, and no prima facie relevancy is made to appear. The ruling, therefore, does not constitute error to reverse. Parrish v. State, 139 Ala. 16, 36 So. 1012. Nor do we think there was error in permitting prosecutrix to state she was nineteen years of age (52 C.J. 1073), and that her mother had been dead since she was fifteen. Brooks v. State, 185 Ala. 1, 64 So. 295.

There were several objections reserved to portions of the oral charge of the court and occasional colloquy between the trial judge and counsel for defendant as these exceptions were being reserved. Defendant's attorneys were impressed that the case had been unfavorably prejudiced before the jury and moved for a mistrial, which motion was denied, and exception duly reserved.

As readily appears from the brief outline given, this case presents a sharp conflict in the evidence and one peculiarly for the jury's consideration and determination. In instructing the jury upon the matter of delay on prosecutrix' part in making complaint, the trial court unfortunately used language which was calculated to leave an unfavorable impression upon the jury as to the court's attitude concerning defendant's case when he stated, "although it is admitted that the offense was committed on the night of April 30, 1939, and that it was reported by her on the 2nd day of May, 1939, just two days intervening--just one whole day intervening, I will say". Exception was duly reserved. Of course there was neither admission of an offense nor that complaint was actually made on the following Tuesday. There was neither retraction nor explanation of this language upon exception being reserved.

The court correctly stated the rule that defendant's testimony may properly be considered in the light of his interest in the case. It would seem that the case of Green v. State, 19 Ala.App. 239, 96 So. 651, cited by defendant, finds some ground for support in Allen v. State, 87 Ala. 107, 6 So. 370 and Tucker v. State, 167 Ala. 1, 52 So. 464. But the Allen and Tucker cases were qualified in the more recent authority of Tillis v. State, 218 Ala. 527, 119 So. 215, where the holding was that the trial judge was well within his province in instructing the jury they "should" consider defendant's testimony in the light of his interest in the case. Numerous cases touching this subject may be found cited in the note to Martin v. State, 46 Okl.Cr. 411, 287 P. 424, 85 A.L.R. 512. These authorities lead to the conclusion that the better practice is for the trial judge to so instruct the jury in this regard in rather general terms and without any undue emphasis.

The trial judge in the instant case did lay some emphasis upon defendant's interest, when he stated, "he has got more interest in the result of the findings of this jury than any one else, because on the verdict of this jury depends his freedom, his liberty, or on it depends his incarceration, or it may be his death". Language similar but containing a less degree of emphasis appears to have...