Allford v. State

• Decision Date: 18 March 1943
• Docket Number: 2 Div. 191.
• Citation: 12 So.2d 407,244 Ala. 148
• Parties: ALLFORD v. STATE.
• Court: Alabama Supreme Court

12 So.2d 407

244 Ala. 148

ALLFORD v. STATE.

2 Div. 191.

Supreme Court of Alabama

March 18, 1943

Thos H. Boggs, of Linden, for the petition.

Wm N. McQueen, Acting Atty. Gen., and Randolph G. Lurie, Asst Atty. Gen., opposed.

THOMAS Justice.

This is a petition for certiorari to review the action of the Court of Appeals in affirming a judgment for rape.

Under the rules long prevailing, we find no error to authorize the granting of the writ.

The Court of Appeals invokes the review by this Court of Weems v. State, 224 Ala. 524, 528, 141 So. 215; Id., 287 U.S. 45, 53 S.Ct. 55, 77 L.Ed. 158, 84 A.L.R. 527; and Thompson v. State, 27 Ala.App. 104, 166 So. 440 441.

In the Thompson case the ruling is predicated on the statement that, "In a prosecution of this character, the alleged injured party may be permitted to testify at the trial as to the act of sexual intercourse complained of, and that the accused had committed said act, but it was not permissible, in the absence of the accused and not within his hearing, for her to testify as to her acts and utterances subsequent to the commission of the crime. * * *" [Italics supplied.]

This is in accord with the rule that obtains and well stated by Judge Bricken in Stewart v. State, 26 Ala.App. 392, 161 So. 112, and on the decisions he cites by this Court.

In the case of Barnett v. State, 83 Ala. 40, 44, 3 So. 612, 614, Mr. Justice Somerville, dealing with the complaint of a prosecutrix under an indictment for rape, said:

"The rule in this state, however, following what is believed to be the weight of authority both in England and America, is settled the other way. When the complaint does not constitute a part of the res gestæ, but is received only in corroboration of the prosecutrix's testimony, the general rule is that the details or particulars cannot be introduced, in the first instance, by the state. This would exclude any statement made in the complaint pointing out the identity of the person accused, or explaining the injuries claimed to have been received during the alleged perpetration of the crime, or otherwise giving the minute circumstances of the event. Griffin v. State, 76 Ala. 29, and cases there cited. * * *

"But there are two cases, at least, where, under the authorities, the details of such complaint may be proved: (1) They may be elicited, on cross-examination, by the defendant; and, where this is done only in part, the state may then proceed to prove, on the rebutting examination, the whole complaint. (2) Where the testimony of the prosecutrix is sought to be impeached by attempting to discredit her story, it is permissible, by way of corroboration, for the state to prove such details, and, according to many of the authorities, also to prove that she told the story the same way to others, confirmatory of her first statement. Griffin v. State, 76 Ala. 29; 3 Greenl.Ev., § 213; * * *."

The case of Weems v. State, supra, shows that the answer of the third party as a witness was in the negative and was an effort of identification. The court rested the ruling on the correct statement of the law that was announced in Barnes v. State, 88 Ala. 204, 7 So. 38, 16...