Blasengame v. State
| Decision Date | 29 June 1948 |
| Docket Number | 8 Div. 660. |
| Citation | 34 Ala.App. 85,37 So.2d 225 |
| Parties | BLASENGAME v. STATE. |
| Court | Alabama Court of Appeals |
Rehearing Denied Aug. 3, 1948.
Thos. C. Pettus, of Moulton, for appellant.
A A. Carmichael, Atty. Gen., and Hugh F. Culverhouse, Asst Atty. Gen., for the State.
This strange and sordid case grows out of appellant's conviction on an indictment charging assault with intent to murder.
The injured woman was May Bell Lancaster, twenty years of age and we will hereinafter refer to her as the prosecutrix.
The State's evidence tends to show that on Saturday, 17 May 1947, the prosecutrix joined Vernie Terry and three boys, one of whom was Vernie's brother.
This group rode around in a car all night. They got out of the car in Courtland on Sunday morning. Later that morning the prosecutrix, Vernie Terry, 'Big Boy' Terry, and William Franklin Terry obtained a taxi and rode out into the country to a place near Mattie Blasengame's home in Lawrence County, arriving there around 9 A.M.
This group's activity until around 2:30 or 3 that afternoon is rather cloudy from the record, but it seems that several of them, with some additional arrivals, were at Mattie Blasengame's house and yard at this later time. It is clearly inferable from the record that most of the party were drunk.
According to the prosecutrix she went behind the house with one J. W. Hamilton to take a drink. At this time the appellant came up, and the prosecutrix testified that 'When he come in there he didn't stay but a little bit till they made occasion to lay hands on me, to overpower me, to take me up there in the woods, to do as they pleased with me.'
According to the prosecutrix, Hamilton and the appellant did take her to some nearby woods. There they overpowered her and Hamilton had sexual intercourse with her. Immediately after Hamilton had completed his act with her the appellant began to have sexual intercourse with her. During this second attack the prosecutrix alleges she became unconscious.
Late that afternoon the prosecutrix was discovered lying unconscious in the woods. Her clothes were pulled above her waist. A broken bottle was near by. Some of the witnesses who observed prosecutrix at this time at first thought she was dead. Pulse was discovered in her body, however, and she was carried to a hospital in Moulton.
Dr. Dyar, who saw her at the hospital shortly after she was admitted, testified that at this time the prosecutrix was unconscious, and smelled of whiskey. Her clothes were quite bloody. Since she was unconscious, he only examined her that night to find the source of the blood.
The next morning, upon a more complete examination Dr. Dyar discovered a cut about one inch deep extending through the vagina, or birth canal, into the rectum, 'a complete cut joining the two openings.' There was also a superficial cut extending on up into the vagina as far as the birth canal goes.
In Dr. Dyar's opinion this wound had been caused by a sharp cutting instrument, and could not have resulted from sexual intercourse.
No evidence of a recent abortion was found by Dr. Dyar at this time.
In Dr. Dyar's opinion, there was a probability of death of the prosecutrix if she had not received medical attention.
Prosecutrix still suffers from the effects of this wound, and will have to undergo an operation looking toward further relief from its effects.
It also appears from Dr. Dyar's testimony that this unfortunate girl was about three months pregnant at the time he testified in the trial below on 13 August 1947.
Vernie Terry testified that she saw the prosecutrix and Hamilton go into the woods, and later the appellant went into the woods in the same direction. After a while she saw Hamilton come out of the woods, but never did see the appellant come out. After she saw Hamilton come out of the woods she left the scene in a taxi.
Jimmie Roberts, who lived near Mattie Blasengame's place, testified he was at Mattie Blasengame's on the Sunday in question.
He saw the prosecutrix and she was drunk and 'mighty near past going.' She walked to the woods, in a staggering condition, accompanied by Hamilton. In 10 to 15 minutes Blasengame followed. According to this witness Blasengame emerged from the woods first, and later he saw Hamilton come out.
This witness denied he had told Mr. Miller, a State Investigator, that Hamilton was the first to emerge from the woods, though Miller testified that he had so stated.
Ed Miller, former Sheriff of Blount County and presently an Investigator for the State, testified that several days after the commission of this offense he went to appellant's home in Decatur to arrest him. Miller was accompanied by the Sheriff of Morgan County, a Deputy Sheriff, and police officers of the City of Decatur. Miller entered the front of appellant's house. Appellant started out of the back door, but when he saw the policemen covering the rear of the house he came back and was arrested by Miller.
After proper predicate as to their voluntary character certain statements made by appellant on this occasion were recounted by Mr. Miller.
Appellant stated to Miller that he followed J. W. Hamilton and prosecutrix into the woods and at her solicitation had intercourse with her, for the price of $2, and had then left the prosecutrix in the woods.
Appellant said he had worn overalls on this occasion. Miller, in appellant's presence, asked his wife where the overalls were and she replied she had washed them and they were hanging on a clothes line in the yard. She then took Mr. Miller to the yard and pointed the overalls out.
Miller called appellant's attention to a stain on the right leg of the overalls, and appellant then stated that the overalls he then had on were the pair he had worn.
Based on his 14 or 15 years of experience as a peace officer, and having seen many bloody clothes, this witness said that in his judgment this stain 'appeared to be blood--looked like a blood stain,' and followed this with a statement that in his judgment the stain on the overalls was blood.
Over the objection of appellant that 'it isn't shown it is blood' the overalls were received in evidence.
The court did not err in overruling appellant's objection on the ground assigned for the reason that the witness Miller without objection being interposed had testified that the stain was, in his judgment, a blood stain. True, objections, if interposed, should have been sustained to this opinion evidence, which could properly be given only by an expert after proper laboratory tests. Our cases holding that any one, including lay witnesses, may testify as to blood stains, because such fact is capable of determination by the average person, deal with freshly ejected blood, or with blood stains that have not been altered by washing, etc. Certainly, where it is shown that the alleged stain is on a garment that has been laundered, then more than opinion testimony by a non expert should be required if the testimony is to rise above...
To continue reading
Request your trial
- Vaughn v. State, 7 Div. 952.
-
Parker v. State, 6 Div. 145
...it can only be concluded that they are not supported by sufficient evidence to permit them to stand. As stated in Blasengame v. State, 34 Ala.App. 85, 37 So.2d 225: 'One of the basic tenets of our Constitution and common law jurisprudence is that only the guilty shall be punished. The liber......
-
Hudson v. State
...is not alone evidence, even circumstantial, that the thing did occur. Taylor v. State, 30 Ala.App. 316, 5 So.2d 117; Blasengame v. State, 34 Ala.App. 85, 37 So.2d 225. Particularly is this true where, from the same proof, the injury can with equal probability be attributed to some other cau......
-
Colley v. State
...363, 33 So.2d 751; Tunstill v. State, 33 Ala.App. 460, 34 So.2d 857; Bedsole v. State, 35 Ala.App. 567, 50 So.2d 457; Blasengame v. State, 34 Ala.App. 85, 37 So.2d 225. It is our opinion the trial court erred in refusing defendant's request for the general affirmative charge. The judgment i......