Cotton v. State

• Decision Date: 26 June 1889
• Parties: COTTON ET AL. v. STATE.
• Court: Alabama Supreme Court

6 So. 396

87 Ala. 75

COTTON ET AL. v. STATE.

Supreme Court of Alabama

June 26, 1889

Appeal from circuit court, Dale county; J. M. CARMICHAEL, Judge.

The defendants, Greene Cotton and Willam Hendrick, were jointly indicted, tried, and convicted of committing a rape on Martha Fralish, and were sentenced to the penitentiary for life. On the trial, as the bill of exceptions states, "evidence was produced by the state tending to show the defendants' guilt. The prosecutrix swore positively to the commission of the offense, and that the defendants committed it; also, that it was the first time she ever saw them. The defendants produced evidence tending to prove an alibi, and that they were not guilty; swearing positively that they did not commit the offense, and that they were never in the vicinity where it was committed. The prosecutrix, while on the stand as a witness, was asked by the defendants if she did not, in the evening after the offense was committed, and at the place where she said it was committed, in describing the parties who she said committed it, give Mr. Baker and Mr Cherry (witnesses for the defense) a description of the men that would not conform to the defendants; and she answered that she did not. The defendants then introduced Cherry and Baker, who testified that the description she gave them at the time and place named did not correspond to the defendants. The state then asked the prosecutrix if nine other negroes were brought to her for identification soon after the offense was committed, and before the defendants were arrested, and if she identified either of the nine as the guilty parties; and she answered that they were brought before her, and that she did not identify any of them. The defendants objected to each of these questions and answers and excepted to their allowance. The state then asked the prosecutrix if she went to Milton, Fla., and there saw the defendants. She answered "Yes" to this question. The state then asked her if she saw them in jail in Ozark in January, 1888, and there identified them, and she answered "Yes."

The bill of exceptions then recites: "The defendants introduced one Hatton as a witness, and asked him if he was at the place where the offense was said to have been committed; and he replied that he was at the place where said Baker and Cherry told him the offense was committed, and that said Baker fell down and rolled over, to see if he would leave any signs of scuffling. The defendants then asked him if the prosecutrix told him that was the place; and he answered, 'No.' The defendants then moved to exclude the testimony of said Hatton, 'that he was at the place where said Baker and Cherry told him the offense was committed;' and they excepted to the overruling of their motion."

The defendants also objected and excepted to the testimony of one Mosely, the county jailer, as to declarations he had heard Greene Cotton, while in his custody, make to one J. C Cotton, his attorney; the facts being thus stated in the bill of exceptions: "After the proper predicate had been laid as to the time and place, the state proposed to ask the defendant Cotton if he did not tell said Mosely that he was at Westville on the 25th October, 1887, on Maj. Landrum's front for nearly a half day, and that he met at De Funiak Fla., on the 26th October, a lawyer from Milton, Fla., named Perrinote, and talked with him, and tried to borrow money from him, saying that he was strapped, and that he could prove the facts if he had that lawyer here. The evidence showed that said Mosely was the jailer at the time, and had the charge and custody of the defendants; and that said Mosely heard said defendant make said statements to one J. C Cotton, a practicing lawyer, who was the defendants' attorney at the time. The defendants objected to the question put to said Greene Cotton, and excepted to its allowance. The court having permitted said Mosely to testify to the declarations of said Greene Cotton to his attorney, J. C Cotton, defendants offered J. C. Cotton as a witness, and asked him if said Greene Cotton, at the time mentioned by Mosely, told him that he was in De Funiak on Wednesday, October 26th; and he replied that Greene Cotton told him he was in De Funiak on Tuesday, and in Milton on Wednesday, October 26th. The state then asked said J. C. Cotton if said Greene Cotton did not tell him that on the 25th October he was a half day on Maj. Landrum's front, in Westville, Fla., which the witness declined to answer, because it called for a privilege communication. The state then moved to exclude that part of the witness' testimony wherein he said that Greene Cotton told him that he was in De Funiak on Tuesday, and in Milton, October 25th, this being...