Brooks v. State

• Decision Date: 05 June 1913
• Citation: 8 Ala.App. 277,62 So. 569
• Parties: BROOKS v. STATE.
• Court: Alabama Court of Appeals

62 So. 569

8 Ala.App. 277

BROOKS v. STATE.

Court of Appeals of Alabama

June 5, 1913

Rehearing Denied June 19, 1913

Appeal from Law and Equity Court, Madison County; J.H. Ballentine Judge.

Percy E. Brooks was convicted of crime, and he appeals. Affirmed.

Lanier & Pride and R.E. Smith, all of Huntsville, for appellant.

R.C. Brickell, Atty. Gen., and W.L. Martin Asst. Atty. Gen., for the State.

PELHAM J.

The defendant was convicted of an assault with intent to ravish and it is earnestly insisted for the appellant that the evidence before the court would not authorize a finding of guilt of this offense by the jury; but we are of the opinion after a careful examination of the evidence set out in the transcript, that the facts before the jury, principally the testimony of the prosecuting witness (a single woman), were sufficient to authorize the jury to reach the conclusion that the defendant assaulted the prosecutrix with the intent forcibly to ravish her. In our opinion no proper or beneficial purpose could be served by setting out facts of this kind and entering into a detailed discussion of evidence of this character.

The defendant, a married man (a fact well known to the prosecutrix, who was on the same social plane with him), did not deny being with her on the occasion in question testified to by her, nor did he deny having made improper advances to her at this time and place, and having put his hand upon her person for the avowed purpose and with the intent of having unlawful sexual intercourse with her; but his purpose and intent, according to the contention of the defendant, was not to force her against her consent, but to persuade her to willingly submit to him--to have unlawful sexual intercourse with her by her consent. Part of the defense, as developed upon the trial, rested upon the claim made by the defendant that the woman by her conversation and conduct prior to, and at the time of, the alleged offense committed by him, had led him to believe that she would be willing to submit to his embraces. The evidence introduced of this nature in support of such claim showed no more than that this unmarried woman, who was an intimate friend of a niece of the defendant's, who lived in his home, had on a few occasions been not altogether as circumspect and discreet in her conversation with the defendant as propriety would approve in one of her station in life. Evidence was also introduced in support of the defendant's claim in this particular having a tendency to show that the conduct of the prosecutrix subsequent to the alleged offense did not comport with the indignation and wounded sensibilities that would be natural to a young unmarried woman who had been subjected to such treatment as she claimed to have received at the hands of the defendant on the occasion she alleged he had attempted to forcibly ravish her. There was also testimony going to show that, after vigorous protest and resistance upon the part of the woman, the defendant voluntarily desisted from gratifying his lustful desires when accomplishment of this imputed and acknowledged purpose was possibly or reasonably attainable.

The first proposition discussed by counsel for the defendant in extensive brief filed has reference to the testimony admitted by the court of complaint having been made by the prosecutrix. It is contended that the evidence was not confined to what it is permissible to prove in the nature of a general complaint, but that the prosecutrix and other witnesses to whom the complaint was made were allowed to testify to the details of the complaint against the defendant's objection. It has been uniformly and repeatedly held in this state that it is permissible to prove in the first instance before the defendant has brought out the particulars or undertaken to impeach the prosecuting witness only that the woman on whom the assault is alleged to have been committed made complaint of the occurrence generally, and that the state is not privileged to prove any of the details or that she stated in the complaint that any particular person assaulted her. Bray v. State, 131 Ala. 46, 31 So. 107; Oakley v. State, 135 Ala. 15, 33 So. 23; Gaines v. State, 167 Ala. 70, 52 So. 643. But it has been held that it is competent to prove, not only the complaint, but also its character (Leoni v. State, 44 Ala. 110, 113), and that, "of course, it is competent to prove whatever circumstances and signs of injury she showed." Scott v. State, 48 Ala. 420, 421. On the direct examination of the prosecuting witness the solicitor brought out only the facts that she had made complaint generally to certain named parties, and had showed to her sister (one of the parties to whom complaint had been made) the bruised places on her person. This was permissible, and does not violate the recognized rule of law under the authorities last above cited. In the case of Leoni v. State, supra, it was held allowable for the purpose of proving the complaint and its character to show that the prosecutrix not only had showed bruises on her arms and legs to the person to whom she had made complaint, but had exhibited a soiled and blood-stained garment in the same connection, although the learned judge rendering the opinion of the court in that case expressed grave doubt and suspicion of the fairness and truthfulness of the girl's statement because of the conditions and circumstances under which it was made. See, also, State v. Baker, 106 Iowa, 99, 76 N.W. 509; State v. Peterson, 110 Iowa, 647, 82 N.W. 329; Jacobs v. State (Tex.Cr.App.) 146 S.W. 558.

When the defendant inquired into the particulars of the complaint on cross-examination, the evidence relating thereto was rendered admissible by both parties, and the introduction by the defendant of evidence seeking to impeach the prosecutrix opened the door for the introduction of evidence by the state to sustain the prosecutrix by showing that her statements in making the complaint corresponded with her testimony on the trial. Griffin v. State, 76 Ala. 29; Barnett v. State, 83 Ala. 40, 3 So. 612. Even if the testimony of the parties to whom complaint was made, to the effect that the prosecutrix complained of being sick, that her back pained her, and of nervousness, etc., can be said to be in violation of the established rule relating to what may be proven in the first instance, this evidence was nevertheless permissible, for it was introduced after the defendant had inquired into the particulars of the complaint on the cross-examination of prosecutrix for the evident purpose of impeachment, and subsequently the defendant and other witnesses were introduced by the defense for the purpose of impeaching the prosecutrix in regard to the complaint made. Barnett v. State, 83 Ala. 40, 3 So. 612; Griffin's Case and Barnett's Case, supra.

It was not improper to allow the witness Mrs. Latham, at whose house the prosecutrix was boarding, to state what the physical condition of the prosecutrix was, and to testify that at the time the complaint was made prosecutrix was "nervous." Sims v. State, 146 Ala. 109, 41 So. 413.

The defendant brought out the fact in the cross-examination of the prosecutrix that she did not swear out a warrant charging the defendant with the crime until Saturday, December 14, 1912, showing a lapse of time since the alleged commission of the offense on Saturday night, October 12, 1912 (as testified to on the direct examination), of a day or two over two months. This delay in making the formal charge brought out on the cross-examination of the witness by the defendant was material as affecting the weight and credibility of the testimony of the prosecutrix, and of the bona fides of the charge made by her, and it was therefore proper for the court to allow the witness to make an explanation of the delay, and give the reasons why she did not make the affidavit earlier. In making the explanation and giving the reasons, it was permissible for the prosecutrix to state her mental status in this connection and give the reasons producing it, for otherwise it would not be possible to meet the attack made. By bringing out this fact the defendant assails the motive actuating the prosecutrix, and this can only be met and answered by showing her mental status, her undisclosed motives or intentions, and what operated on her mind to produce them and cause the delay. Jacobi v. State, 133 Ala. 1, 32 So. 158. It was proper to accord the state the opportunity to rebut the unfavorable inferences that might be drawn from the prosecutrix's conduct in delaying by explaining the circumstances causing it. Pitman v. State, 148 Ala. 612, 42 So. 993. For the purpose of rebutting any unfavorable inference arising out of the delay, the prosecutrix may state the reasons why she did not act earlier. Polson v. State, 137 Ind. 519, 35 N.E. 907; People v. Ezzo, 104 Mich. 341, 62 N.W. 407; People v. Mayes, 66 Cal. 597, 6 P. 691, 56 Am.Rep. 126; State v. Knapp, 45 N.H. 148; State v. Wilkins, 66 Vt. 1, 28 A. 323; People v. Marrs, 125 Mich. 376, 84 N.W. 284; State v. Bebb, 125 Iowa, 494, 101 N.W. 189.

The court properly permitted the state to cross-examine the defendant's witness Susie Mae Rountree in regard to the undelivered letter written by her to the prosecutrix. This evidence had a tendency to show the relations existing between the parties, to show bias and to impeach a portion of the testimony of this witness, and to contradict the defendant.

That part of the answer of the defendant in reference to a conversation between him and the prosecutrix about a Miss Hallie's riding astride that was excluded by the court is shown by the bill of exceptions to have been a voluntary statement by the witness, and not responsive to the question asked,...