1 So.2d 593 (Ala. 1941), 2 Div. 157, Mosley v. State

Docket Nº:2 Div. 157.
Citation:1 So.2d 593, 241 Ala. 132
Opinion Judge:GARDNER, Chief Justice.
Party Name:MOSLEY v STATE.
Attorney: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.
Case Date:April 10, 1941
Court:Supreme Court of Alabama

Page 593

1 So.2d 593 (Ala. 1941)

241 Ala. 132




2 Div. 157.

Supreme Court of Alabama

April 10, 1941

Page 594

[241 Ala. 134] 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.

[241 Ala. 135] 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...

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