Brasher v. State

• Decision Date: 10 April 1947
• Docket Number: 6 Div. 489.
• Citation: 249 Ala. 96,30 So.2d 31
• Parties: BRASHER v. STATE.
• Court: Alabama Supreme Court

30 So.2d 31

249 Ala. 96

BRASHER v. STATE.

6 Div. 489.

Supreme Court of Alabama

April 10, 1947

Certiorari to Court of Appeals.

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

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

LAWSON Justice.

Fayette Brasher was convicted of having carnal knowledge of a girl over twelve but under sixteen years of age, § 399, Title 14, Code 1940.

Brasher pleaded not guilty to the indictment and by the testimony of his wife attempted to prove an alibi. The girl, Elsie Louise Golden, who was thirteen years old at the time the offense was alleged to have been committed, positively identified Brasher as the man who carnally knew her. It appear that she was well-developed for her age.

Upon the trial of the case the trial court permitted the State to show: (1) By a little five-year-old girl that Brasher performed degenerate and perverted sexual acts with her approximately four months prior to the date of his alleged illegal relation with the thirteen-year-old girl. (2) By a physician who examined the little five-year-old girl about four days after her alleged mistreatment by Brasher that she was then suffering from chronic gonorrhea and that it was possible for gonorrhea to reach a chronic stage although a person had been originally infected with the germ only three or four days previously. There was no evidence that Brasher had been infected with such disease at the time it is claimed he mistreated the little five-year-old girl. All of such evidence was admitted solely as going to prove identity.

Brasher appealed to the Court of Appeals, which court reversed the judgment of conviction on the ground that the trial court committed error in admitting in evidence the testimony of the physician relative to the little girl being infected with gonorrhea. The State of Alabama, by its Attorney General here contends that in so holding the Court of Appeals has erred and has filed a petition for writ of certiorari to review and revise the decision of the Court of Appeals in that regard.

However the Court of Appeals held that the trial court correctly permitted the State to show the fact that Brasher had committed the alleged acts of perversion and degeneracy upon the little five-year-old girl. Consequently, Brasher has also filed a petition for writ of certiorari to review and revise the decision of the Court of Appeals to the extent of that holding.

We will first consider the question as to whether any of the evidence relating to the little five-year-old girl should have been admitted.

It appears from the opinion of the Court of Appeals that that court considered such evidence admissible because Brasher was on trial for a sex offense against a thirteen-year-old girl, which offense under his plea he denied having committed. Hence the identity of the perpetrator of the crime was in issue and the Court of Appeals considered the evidence as to Brasher's relations with the little five-year-old girl as indicating that it was likely that Brasher was the man who committed the crime charged, because it showed that he was a person 'tainted with traits of sexual depravity,' a man 'afflicted with general base desires for young girls, and therefore of sufficient probative value to justify its admission in this prosecution as identifying the accused as a man of such inclinations.' Reliance was had upon the case of Wilkins v. State, 29 Ala.App. 349, 197 So. 75, certiorari denied, 240 Ala. 52, 197 So. 81. The effect of such holding is that the evidence as to defendant's relations with the little five-year-old girl was admissible for the purpose of identification because it showed he was a man with a disposition, propensity, or inclination to commit such offenses with little girls.

It is difficult to find any other possible theory upon which such evidence could have been held admissible. In the instant case Brasher is charged with the commission of a normal sexual act, illegal because of the age of the girl. The evidence as to his relationship with the five-year-old girl showed an abnormal sexual act, an act of perversion and depravity. The two acts were separate and distinct. They were in no sense intermixed or blended, one with the other, or connected so as to form parts of the same criminal transaction. The act alleged to have been committed on the little five-year-old girl was certainly not of the res gestae of the offense for which he was being tried. There was no similarity in the manner, location or circumstances in which the two offenses were committed such as to support a logical inference that the same man committed both acts.

The main ground upon which Brasher bases his contention that such evidence should have been excluded is that it was an attempt to prove a separate and distinct offense. This question of the admissibility of evidence touching other crimes perpetrated by a defendant on trial for a specified offense has been the theme of much discussion by courts and text writers. Some of them approach the solution of the problem with the idea that except when it shows merely criminal disposition, evidence that is relevant is not excluded because it reveals the commission of an offense other than that charged. People v. Peete, Cal.Sup., 169 P.2d 924; Stone, The Rule of Exclusion of Similar Fact Evidence: England, 46 Harv.L.Rev. 954; Stone, The Rule of Exclusion of Similar Fact Evidence: America, 51 Harv.L.Rev. 988. Such is the effect of Rule 311 of the American Law Institute's Model Code of Evidence, which is as follows: 'Subject to Rule 306, evidence that a person committed a crime or civil wrong on a specified occasion is inadmissible as tending to prove that he committed a crime or civil wrong on another occasion if, but only if, the evidence is relevant solely as tending to prove his disposition to commit such a crime or civil wrong or to commit crimes or civil wrongs generally.'

But this court over a long period of years has approached the solution of the question on the theory that there is a rule against the admissibility of evidence concerning prior offenses, but that to such rule there are well-recognized exceptions. Ingram v. State, 39 Ala. 247, 84 Am.Dec. 782; Gassenheimer v. State, 52 Ala. 313; Johnson v. State, 242 Ala. 278, 5 So.2d 632. The reason for such so-called rule of exclusion lies no doubt in the fact that proof of another and distinct offense has ordinarily no tendency to establish the offense charged.

Among the exceptions to the so-called rule of exclusion, recognized in this state, is that where a question is raised as to the identity of the person committing the offense, evidence of other offenses is sometimes admitted for the purpose of establishing such identity. Ingram v. State, supra; Gassenheimer v. State, supra; Johnson v. State, supra.

The rule in this jurisdiction, as it is generally, is that in some sexual cases, such as fornication, statutory rape and sodomy, other similar acts between the same parties are admissible as tending to sustain the principal charge by showing the relation and intimacy of the parties. Lawson and Swinney v. State, 20 Ala. 65, 56 Am.Dec. 182; Harrison v. State, 235 Ala. 1, 178 So. 458; Brown v. State, Ala.App., 22 So.2d 445. But those cases are not here controlling because of the fact that here different parties were involved in the two offenses and there is no similarity in the acts alleged to have been committed other than that they were both of a sexual nature.

We have found no case from this jurisdiction, and none has been called to our attention, which answers the exact question here presented, which is: Can the prosecution introduce evidence of other offenses committed by the accused with third persons for the purpose of identifying him as the person who committed the specific crime charged, when such evidence does nothing more than show the accused's inclination or disposition to commit that type of crime or to show his sexual depravity?

The cases of Wilder v. State, 30 Ala.App. 107, 1 So.2d 317, and Johnson v. State, supra, are cases where evidence of similar offenses was held admissible for the purpose of proving identity, but such evidence was not held admissible on the ground that it tended to show the defendant's disposition or inclination to commit the particular type of crime for which he was on trial, but because of similarity in circumstances. In the Wilder case, supra, it was said: 'Where the crime has been committed by some novel or extraordinary means or in a peculiar or unusual manner, evidence of recent similar acts or crimes by the accused committed by the same means or in the same manner are provable to identify the accused as an inference from the similarity of method.' (At page 109 of 30 Ala.App., at page 319 of 1 So.2d).

In Johnson v. State, supra, the evidence as to other offenses showed that they were committed in much the same manner as was the offense for which the defendant was on trial. This court in holding such evidence admissible did not base its conclusion on the Wilkins case, supra, but cited it only as presenting a somewhat analogous situation. We quote from Johnson v. State, supra, as follows [242 Ala. 278, 5 So.2d 635]: 'The case of Wilkins v. State, 29 Ala.App 349, 197 So. 75, bears some analogy. And in Wilder v. State , 1 So.2d 317, the Court of Appeals had a similar question here presented. See, also, the recent United States Supreme Court case of Lisenba v. People of State of California, 314 U.S. 219, 62 S.Ct. 280, 86 L.Ed. 166. The other offenses here shown were all of similar character, committed within the same territory and all within a period of eighteen days. It is to be noted also that in each instance the victim was a...