Barnett v. State

• Decision Date: 26 January 1888
• Parties: BARNETT v. STATE.
• Court: Alabama Supreme Court

3 So. 612

83 Ala. 40

BARNETT v. STATE.

Supreme Court of Alabama

January 26, 1888

Appeal from city court, Montgomery county; THOMAS M. ARRINGTON Judge.

Indictment for rape. The indictment in this case charged that the defendant, Will Barnett, a negro man, forcibly ravished Lydia Bryant. The defendant pleaded not guilty, and was tried on issue joined on that plea, and convicted by the jury, and sentenced to the penitentiary for life. On the trial, as appears from the bill of exceptions, the prosecutrix was examined as a witness for the state, and testified in substance that she was stopped one morning, while passing through a pasture more than a half mile from the house, by a negro man, who asked to have intercourse with her; that she refused and ran from him, but was pursued and overtaken "and, after they had scuffled until she was exhausted he accomplished his purpose, and had sexual connection with her." On cross-examination she stated that she ran away as soon as she got loose from the man, and overtook one Alfred Norman who was out hunting and had a gun in his hand "and told him to look at the place where they had had the scuffle, and made complaint to him, (about 10 minutes after she was forced,) and described the negro man to him as a short, chunky man with a flat nose, and lips that stuck out, who looked like Scott Barnes;" that she did not see the defendant after the alleged rape until he was being carried to the office of Squire Gardner after arrest, when he was pointed out to her, and she identified him, but did not before know him. She denied that she had ever told Rafe Adams, Wesley Hutto, or Gus Montgomery's family "that the man did not get her clothes higher than her knees;" nor had she ever told any one "that it was not Will Barnett,-that she knew him,-but it was a man who called himself Charlie, and who lived near the railroad;" and she admitted that she had had a bastard child. Alfred Norman, being then examined as a witness for the state, testified that the prosecutrix, when she overtook him, "said that a negro had run after her, and he inferred from what she said that she had been ravished, though she did not say so." The prosecuting attorney then asked him to state "what the prosecutrix said to him in that complaint;" and the court allowed the question, against the objection and exception of the defendant. The witness answered: "She asked him to try and catch the negro, and showed him some scratches on the ground, where she said they had the scuffle; said the negro ran after her, and she screamed; and described the negro, and said he looked life Scott Barnes, and that he threatened to kill her." The defendant "moved to exclude the answer from the jury," and excepted to the overruling of the motion. Rafe Adams and Wesley Hutto, witnesses for the defense, testified that the prosecutrix told them, the day after the commission of the alleged rape, "that the man did not get her dress higher than her knees;" and the other persons above named testified that she told them "it was not Will Barnett,-that she knew Will, and it was not he; that it was a man who said his name was Charlie, whom she had often seen coming from the direction of the railroad." There was also evidence as to the good character of the defendant, and evidence tending to show that the prosecutrix was a woman of ill fame. This being all the testimony, the defendant requested the following charges in writing, each of which was refused by the court, and exceptions duly reserved to their refusal: "(4) When the good character of the defendant has been proved, this will be sufficient to generate a reasonable doubt of his guilt, even when such doubt would otherwise not exist." "(5) If the jury believe from the evidence that the prosecutrix has associated and been intimate with negroes; or that she left her trunk for a long time at Josh Pomeroy's house, and changed her clothes there; or that she frequently got tobacco from him; or frequently visited at Lucy Montgomery's house, and borrowed her dress, and ate there,-these are circumstances from which the jury can and may infer and presume that she would and did consent to having carnal intercourse with a negro." "(6) If the prosecutrix be of ill fame, and stand unsupported by the testimony of others, this will justify a strong inference that her testimony is false." "(7) The jury are advised that in this case they should not sustain the prosecution, unless the evidence of the prosecutrix is corroborated by the testimony of experienced persons, medical or otherwise, who were called in to examine her person as soon after the occurrence as circumstances allowed; and her refusal to be examined by a physician subjects her evidence to discredit." "(9) The facts, if proven, that the clothes of the prosecutrix were not soiled, and that she was not hurt, are circumstances from which the jury can infer that her consent was given." At the March term, 1887, a day was set for the trial of the defendant, and an order for the service on him of a copy of the indictment, and also for the special venire summoned for his trial; but the cause was afterwards continued. At the next term, a day being again set for his trial, and a special venire being again ordered and summoned, a copy thereof was ordered to be served on him, and was served. After conviction he moved in arrest of judgment because a copy of the indictment was not served at the same time with a copy of the venire; but, it being admitted that a copy of the indictment had been served at the former term, under the order made, the court overruled the motion. These several rulings of the court, and the refusal to give the several charges asked, are assigned as error.

A. P. Agee, for appellant.

Thos. N. McClellan, Atty. Gen., for the State.

SOMERVILLE J.

1. In prosecutions for rape it is not denied, and in fact may be said to be universally conceded, that the state may, on the direct examination of the prosecutrix, prove the bare fact that she made complaint of the injury, and when and to whom and she may be corroborated by the person to whom she complained as to the same fact. As to whether the details or particular facts of the complaint can be proved, there is some conflict of authority among the decisions outside of this state; some of the most respectable courts holding that such evidence is admissible to show the nature of the complaint and the probability of its truth. Benstine v. State, 2 Lea, 169, 31 Amer. Rep. 593; Woods v. People, 55 N.Y. 515, 14 Amer. Rep. 309; State v. Kinney, 44 Conn. 153, 26 Amer. Rep. 436. 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 gest , but is received only in corroboration of the prosecutrix's testimony, the general...