Daniell v. State

• Decision Date: 16 March 1954
• Docket Number: 8 Div. 340
• Citation: 37 Ala.App. 559,73 So.2d 370
• Parties: DANIELL v. STATE.
• Court: Alabama Court of Appeals

Page 370

73 So.2d 370

37 Ala.App. 559

DANIELL v. STATE.

8 Div. 340.

Court of Appeals of Alabama.

March 16, 1954.

Rehearing Denied April 14, 1954.

Scruggs & Scruggs, Guntersville, for appellant.

Si Garrett, Atty. Gen., Robt. Straub, Asst. Atty. Gen., for the State.

HARWOOD, Judge.

In the court below this appellant was convicted of assault with intent to rape.

The prosecutrix testified that she was riding around with the appellant in his truck on a night in August 1952.

About two miles below Scant City the appellant turned off of the main road onto a gravel road and drove down the gravel road about a quarter of a mile where he parked the truck.

The appellant then proceeded to make improper advances, and upon her resisting, told the prosecutrix that he was going to rape her or he was going to kill her. A struggle ensued.

The prosecutrix succeeded in getting out of the cab of the truck and ran back down the road about a quarter of a mile. When she reached the intersection of the main road she encountered Carmen Maze and Billy Rowe in a truck.

According to the prosecutrix the appellant followed her on foot about half the distance to the intersection then returned to his truck and followed her in it. During all this time the appellant was insisting that she get back in his truck, and that he was 'aiming' to make her do so.

The prosecutrix also testified that he stated he would kill her if she got in the other truck with Maze and Rowe.

The prosecutrix further testified that when she met Maze and Rowe she asked them to take her back to Arab. In this connection the record shows the following:

'Q. What did you do when you saw them? A. I asked them if they would take me back to Arab.

'Mr. Scruggs: We object unless the defendant was present.

'Q. Was the defendant present at that time? A. Yes, sir.

'Q. Did----. What did you do then after you had asked these other boys to carry you to Arab? A. I got in the truck with them.

'Mr. Waid: You may ask her.'

Carmen Maze, a witness for the State, testified that when he first saw the prosecutrix she was stumbling along the gravel road. Her blouse was unbuttoned. She made a complaint to him and Rowe. He saw the appellant there in a truck.

Billy Rowe was also a witness for the State. His testimony is largely corroborative of the testimony of the witness Maze. Rowe testified that he saw the appellant around there on that night riding in a pick up truck.

The Solicitor, during the direct examination of this witness, asked him to tell what the prosecutrix had said when she came up to him and Maze.

The appellant's objection on the grounds that it was not shown that the appellant was present was overruled, the court stating that he thought such evidence to be part of the res gestae. An exception to the court's ruling was reserved.

The witness answered: 'She said he was down there trying to rape her.'

For the defense the appellant testified that after he had parked his truck he observed the lights of another vehicle. The prosecutrix then got out of his truck on a pretext, and he heard her walking down the gravel road. He called to her but she did not answer. Thereupon he drove down the road. Then according to the appellant: 'She was walking by the gravel and she was standing there by a truck, her and I was talking and Carmen Maze pulled up behind. She said, 'Who is that.' I said 'I don't know.' She said, 'I am going to find out who it is.' She went back and crawled in the truck. They pulled up by the side of her and Carmen said, 'Yes, you are trying to rape her like you did my wife.' I said I wasn't. I said, 'Did you tell him that.' She said, 'I didn't tell him no such.' They went on toward Arab.'

The appellant denied that he had at any time forced any physical attention on the prosecutrix, or done anything to which she had not been a willing participant.

On cross-examination he testified that he had driven the prosecutrix to the place in question for the purpose of having sexual relations with her.

Counsel for appellant argues strenuously that the court erred in its ruling permitting the witness Rowe to testify that the prosecutrix had stated to him that the appellant was down there trying to rape her. This statement was made when the prosecutrix met Rowe and Maze after running or stumbling down the gravel road.

The general rule is that in a prosecution for rape, or assault with intent to rape the State may show by the prosecutrix, or the witnesses to whom she complained, the fact that she did make a complaint of having been abused. However such evidence must be limited on direct examination to the mere fact that a complaint was made. The details of the occurrence that may have been stated in the complaint cannot be shown, nor can the identity of the person accused in the complaint be made known. Hall v. State, 248 Ala. 33, 26 So.2d 566; Allford v. State, 31 Ala.App. 62, 12 So.2d 404; McCluskey v. State, 35 Ala.App. 456, 48 So.2d 68.

However if the complaint is contemporaneous with the main occurrence, and so closely connected with it as to illustrate its character it may be admitted as part of the res gestae. We are clear to the conclusion that under the State's evidence the complaint of the prosecutrix was part and parcel of the main act. Under prosecutrix' testimony, after she succeeded in escaping from the appellant's truck and thus thwarting appellant's avowed intent to ravish her, she was followed by the appellant who was attempting to get her back in his truck. Upon their meeting Rowe and Maze the appellant threatened to kill her if she got into their truck. It was during this continuing time that her complaint to Rowe was made. The court was therefore correct in its conclusion that the complaint should have been admitted as part of the res gestae.

This being so the scope of the evidence is no longer limited to showing a bare complaint, but the complaint itself is admissible. See 44 Am.Jur. Sec. 85; Lacy v. State, 45 Ala. 80; Griffin v. State, 76 Ala. 29; Barnett v. State, 83 Ala. 40, 3 So. 612.

During the direct examination of State's witnesses Maze and Rowe they were each respectively questioned as to the prosecutrix' appearance when they first saw her on the night in question.

To such questions Maze replied:

'Well, she was pale looking and her appearance seemed to be something was wrong,' and also, to a separate question, 'She looked like she saw a ghost or something.'

Appellant's motions to exclude that part of the first answer 'and her appearance seemed to be something was wrong,' and to exclude the whole of the second answer, on the grounds that same were mere conclusions of the witness, and were invasive of the province of the jury, were overruled. Exceptions were duly reserved to such rulings.

Rowe's answer to such question was: 'Well, she was scared.'

Appellant's motion to exclude this answer was likewise denied, and exception to the ruling was duly reserved.

The above rulings involve what is commonly called the 'Opinion Rule,' a fruitful producer of irreconcilable decisions. One able justice of our Supreme Court has poignantly observed 'The condition of the authorities on the subject is little better than a state of anarchy.'

Illustrative of the jurisprudential mare's nest constructed by the decisions of this court and of our Supreme Court in dealing with this question, we note the following among many decisions:

In Gassenheimer v. State, 52 Ala. 313, it was held that a witness' opinion that the defendant 'looked excited' should not have been permitted to go to the jury, while in the State v. Houston, 78 Ala. 576, it is stated: 'A witness may testify that a person was excited, but not to the impression made on his mind'; a witness may testify that another appeared angry, Long v. Seigel, 177 Ala. 338, 58 So. 380, or that he talked to another in a pleasant manner, Alabma Great Southern R. Co. v. Frazier, 93 Ala. 45, 9 So. 303; or that another 'looked sick,' Stone & Best v. Watson, 37 Ala. 279, 280; or that another 'seemed to be suffering,' and 'looked bad,' South & N. A. R. C. v. McLendon, 63 Ala. 266; or that another was a nervous wreck, Bradley v. Lewis, 211 Ala. 264, 100 So. 324; but a witness may not testify that another 'looked downcast,' McAdory v. State, 59 Ala. 92; or that another was 'just wild,' Hembree v. State, 20 Ala.App. 181, 101 So. 221; although a witness may testify that another 'was not then in a normal state', and "didn't seem to realize anything about it; she did not seem to know anything about it." Pitts v. State, 19 Ala.App. 564, 99 So. 61.

Further, it has been held that a witness should not be allowed to state that two particular tracks are the same, Terry v. State, 118 Ala. 79, 23 So. 776, but that a witness who has examined the alleged track of the defendant could state that it 'corresponded' with a track made by the defendant the next day, with which the witness compared it by measurement and certain peculiarities. Busby v. State, 77 Ala. 66. However, in Livingston v. State, 105 Ala. 127, 16 So. 801, it was ruled that a witness could not state that particular tracks 'corresponded' with the tracks of the defendant.

In tracing the historical development of the Opinion Rule Mr. Wigmore demonstrates that the original objection to 'mere opinion' was that it was the guess of a person who had no personal knowledge, and the opinion of an expert was admitted as a necessary exception because his knowledge was greater than the jury's; that the old objection to a lay witness' opinion was a matter...