Allen v. State

• Decision Date: 18 June 1889
• Citation: Allen v. State, 87 Ala. 107, 6 So. 370 (Ala. 1889)
• Parties: ALLEN v. STATE.
• Court: Alabama Supreme Court

6 So. 370

87 Ala. 107

ALLEN v. STATE.

Supreme Court of Alabama

June 18, 1889

Appeal from circuit court, Russell county; J. M. CARMICHAEL, Judge.

Isham Allen was indicted for committing a rape on Annie Capers, a girl about 16 years old; was convicted under the charge of the court; and sentenced to the penitentiary for life. On the trial the prosecutrix testified to the commission of the offense by the defendant, stating time, place, and circumstances, while defendant testified that he had connection with her at the time and place named, but said that it was with her consent, and that he had had connection with her before. Aggie Capers, the mother of the prosecutrix testified that the prosecutrix, immediately upon her return home, had complained to her that the defendant "had ravished her;" and that she (witness) then went to the house of Capt. Glenn, on the same evening, and talked to him about it. Defendant then asked her "if she did not tell Capt. Glenn that Annie said, 'Isham tried to rape her but did not do it, because she called some one, and stopped him;"' which she denied. Capt. Glenn was asked if on the evening of the alleged rape, when the mother of the prosecutrix came to see him, "she did not tell him that Annie said, 'Isham tried to rape her, but did not do it because she called some one, and stopped him."' The state objected to this question, the court sustained the objection, and defendant excepted.

The court gave the following charge to the jury: "In considering the statement made on oath by the defendant, and what weight they may give to it, it is the duty of the jury to remember that he is the defendant, and interested in the result of the verdict; and they may, for this reason, if they think it sufficient, entirely disregard his statement, if it is in conflict with the other evidence of the case." Defendant excepted to this charge, and also to the refusal of the court to give the following charge: "(3) If the jury believe from the evidence that the conduct of the prosecutrix towards the defendant, at the time of the alleged rape, was such as to create in the mind of the defendant an honest and reasonable belief that she consented, or was willing for him to have connection with her, they must acquit the defendant."

John V. Smith, for appellant.

W. L. Martin, Atty. Gen., for the State.

McCLELLAN J.

The defendant had the right to elicit from the witness Aggie Capers the particulars of the complaint made to her by the prosecutrix. Griffin v. State, 76 Ala. 29; Scott v. State, 48 Ala. 420; Barnett v. State, 83 Ala. 40, 3 South. Rep. 612. This evidence was material therefore; and it was competent to impeach the witness, by showing that she had stated these particulars out of court to be other than those to which she testified on the trial. This was proposed to be done by asking the witness Glenn whether Aggie had not told him that the prosecutrix complained to her that the defendant had tried to rape her, but had not succeeded, a sufficient predicate having been laid for impeachment in this case, and the refusal of the...