Brasher v. State, 6 Div. 281.

• Decision Date: 18 June 1946
• Docket Number: 6 Div. 281.
• Citation: 30 So.2d 26,33 Ala.App. 13
• Parties: BRASHER v. STATE.
• Court: Alabama Court of Appeals

30 So.2d 26

33 Ala.App. 13

BRASHER v. STATE.

6 Div. 281.

Alabama Court of Appeals

June 18, 1946

Rehearing Denied Aug. 1, 1946.

Appeal from Circuit Court, Jefferson County; John C. Morrow Judge.

Ben F. Ray and G. J. Prosch, both of Birmingham for appellant.

Wm N. McQueen, Atty. Gen., and John O. Harris, Asst. Atty. Gen., for the State.

HARWOOD Judge.

Both the appellant and the State have made their respective applications for a rehearing in this cause.

In order to avoid any confusion that might result from extensions to the original opinion which we think indicated by the above applications, the said original opinion in this cause which was handed down by this court on June 18, 1946, is hereby withdrawn and held for naught, and the following opinion is substituted in lieu thereof:

This appellant was indicted for carnal knowledge of a girl over the age of twelve years and under the age of sixteen years. He pleaded not guilty. A jury found him guilty as charged and fixed his punishment at two years in the penitentiary.

We need not concern ourselves particularly with the substantive offense for which appellant was convicted. In this connection it suffices to say of this aspect of the case that the tendency of the evidence introduced by the State established that appellant carnally knew a girl of the age of thirteen years. That the girl was well developed for her age, and nonresistant if not acquiescent toward appellant's advances is immaterial, as is the fact, if it be a fact, attempted to be established by numerous neighbors that her reputation in the community was bad.

The sole question in the case arises out of the court's action in admitting, over the strenuous objection of appellant, evidence of appellant's sexual misconduct toward a five year old girl approximately four months prior to the date of his illegal relation with the thirteen year old girl.

When the five year old girl was offered as a witness the jury was excused and she was examined voir dire as to her competency as a witness. This examination was repeated when the jury was returned to the box.

This five year old girl testified largely by nodding or shaking her head in reply to questions propounded to her. The trial court, over objection of the appellant, held her competent as a witness after she had testified that she knew that little girls who told untruths would 'go to the bogeyman down under the ground,' and those who told the truth would 'go up to Jesus.'

There is no particular age at which a person becomes competent as a witness. While the same rules govern competency of witnesses in all types of cases, it is highly essential if sexual offenses against children are to be established that their testimony be received. Otherwise an undeserved immunity would cloak these loathsome evildoers in their offenses against the persons of young children. McGuff v. State, 88 Ala. 147, 7 So. 35, 16 Am.St.Rep. 25. In our opinion this young witness evidenced a sufficient understanding of the moral wrongness of falsifying and its prospective future punishment that the court cannot be said to have abused its discretion in holding her competent as a witness.

This young five year old witness testified that one night appellant had taken her, together with his own child, to get some ice cream. On the way back appellant stopped in some woods and took her out of the car. Without going into the revulsive details of this episode it will suffice to say that it is clear from the testimony of this child witness that appellant performed degenerate and perverted sexual acts with her.

The mother of this child testified that it was on a night in November, 1944, probably November 10th, we gather from other evidence in the record, that appellant took her child on the trip for ice cream.

Over the strenuous objection of appellant a physician who saw this young witness about four days after her alleged mistreatment by this appellant testified that at the time he examined her she was suffering from chronic gonorrhea. As we interpret this physician's testimony he further testified that it was possible for gonorrhea to reach a chronic stage although a person had been originally infected with the germ only three of four days previously; that the infection usually passes through an acute stage when there is edema, redness, and fever in the infected area. When these symptoms subside and a discharge only remains the condition is then said to be chronic.

For the defense the appellant's wife, Mrs. Brasher, was the chief witness. Her direct testimony was to the effect that appellant arrived at his home on April 4, the date of alleged offense with the thirteen year old girl, at the usual time he returned home from his job, and that he did not leave his premises thereafter.

The extensive cross examination of Mrs. Brasher was addressed exclusively to developing the alleged offense against the five year old girl. In this connection, and over the objection of appellant, the solicitor was permitted to question her as to whether the appellant had not left the house they were occupying the day after he had taken the five year old girl and his own child for ice cream and had never returned thereto. The court admitted this testimony on the theory that it showed flight and consciousness of guilt on the part of appellant.

On redirect examination Mrs. Brasher testified that she had had sexual intercourse with appellant around the time he was alleged to have abused the five year old girl and that she had not contracted gonorrhea, and that she had done nothing to prevent any infection.

Section 6 of the Alabama Constitution of 1901 provides that in all criminal prosecutions the accused has a right to demand the nature and cause of the accusation against him and to have a copy thereof. On the information thus supplied he prepares his defense. As stated in Gassenheimer v. State, 52 Ala. 313, 'Than that accusation he cannot be supposed to stand prepared to answer.' Reflecting these same principles is the general and well recognized rule that in a prosecution for a particular offense evidence tending to show a defendant guilty of another and distinct offense, disconnected with the crime charged, is inadmissible. Dennison v. State, 17 Ala.App. 674, 88 So. 211.

Common sense and its utilitarian base has compelled the growth of exceptions to the above enunciated set general rule. While proof of other offenses cannot be used as substantive evidence to establish the offense charged, if it is relevant and competent it should be admitted regardless of its incidental effect. See 20 Am.Jur., § 309, 22 R.C.L., § 39. These recognized exceptions to the general rule have developed into general categories and are listed in Wharton's Criminal Evidence, Section 31, as follows:

'These exceptions fall under the following general divisions: (1) Relevancy as part of res gestae. (2) Relevancy to prove identity of person or of crime. (3) Relevancy to prove scienter, or guilty knowledge. (4) Relevancy to prove intent. (5) Relevancy to show motive. (6) Relevancy to prove system. (7) Relevancy to prove malice. (8) Relevancy to rebut special defenses. (9) Relevancy in various particular crimes. It is recognized that in many instances the line of demarcation is not clear, but the discretion vested in the trial judge, intelligently and considerately exercised, will enable the prosecution fully to present the charge, on the one hand, and, on the other hand, to protect the accused and secure to him the rights guaranteed to him by the Constitution and the laws.' (Italics ours).

Expositions of the doctrine pertaining to the admissibility of evidence of other similar acts and crimes as the one on which the prosecution is based as bearing on the motive, intent, scienter, and identity of the accused, as it has developed in this jurisdiction may be found in the recent cases of Wilkins v. State, 29 Ala.App. 349, 197 So. 75, certiorari denied 240 Ala. 52, 197 So. 81; Lee v. State, 31 Ala.App. 91, 13 So.2d 583, certiorari denied 244 Ala. 401, 13 So.2d 590; Brown v. State, Ala.App., 22 So.2d 445; Lee v. State, 246 Ala. 69, 18 So.2d 706; Daniels v. State, 243 Ala. 675, 11 So.2d 756; Robinson v. State, 243 Ala. 684, 11 So.2d 732; Johnson v. State, 242 Ala. 278, 5 So.2d 632; Jackson v. State, 229 Ala. 48, 155 So. 581.

The learned trial judge in admitting in this case the evidence pertaining to the alleged offense by appellant against the five year old girl emphasized at the time of its admission and again in his oral charge to the jury that such evidence was being admitted solely as...