Davis v. State

• Decision Date: 23 November 1926
• Docket Number: 1 Div. 679
• Citation: 110 So. 599,21 Ala.App. 595
• Parties: DAVIS v. STATE.
• Court: Alabama Court of Appeals

110 So. 599

21 Ala.App. 595

DAVIS v. STATE.

1 Div. 679

Court of Appeals of Alabama

November 23, 1926

Appeal from Circuit Court, Mobile County; Joel W. Goldsby, Judge.

George alias Ollie, Davis was convicted of an offense, and he appeals. Affirmed.

Outlaw, Kilborn & Smith, of Mobile, for appellant.

Harwell G. Davis, Atty. Gen., for the State.

BRICKEN P.J.

This case was formerly before this court on appeal. Davis v State, 20 Ala.App. 463, 103 So. 73.

The indictment charged the defendant with the offense of carnal knowledge, etc., of a girl over 12 and under 16 years of age. Pending the trial, from the judgment of which this appeal was taken, several exceptions were reserved to the court's rulings upon the admission of evidence. Counsel for appellant, however, very frankly, and we think properly confine their insistence of error to two questions only.

The girl in question, Minnie Lee Crabtree, testified that the defendant had sexual intercourse with her at her home somewhere about the 1st of July, 1922, and over the objection and exception of defendant, she was permitted to testify that she gave birth to a child on the following 26th day of March. It is insisted that this ruling of the court constituted reversible error. We do not so conclude. We think the physical substantive fact of the birth of the child is corroborative of her testimony to the effect that she had had sexual intercourse, and to this extent shed light upon that important issue and tended to prove the corpus delicti. Whether such intercourse was with the accused or not was under the conflicting evidence, a question for the determination of the jury. In the case of Davis v. State, supra, this court said:

"The fact that the girl gave birth to a child is material and relevant as tending to prove the corpus delicti. *** This evidence was admissible for the purpose of proving a crime and fixing the time."

In this case there was no conflict in the evidence as to the birth of the child. The fact that Minnie Lee Crabtree gave birth to a child on March 26, 1923, was admitted by the evidence. This being true it was relevant and competent for the prosecutrix to testify that the defendant is the father of said child. While it is true that the defendant may have been guilty without reference to the paternity of the child, yet that fact was relevant and material as an incriminatory circumstance tending to shed light on the material issue involved upon the trial of this case and to establish the guilt of the defendant as charged. Palmer v. State, 165 Ala. 129, 51 So. 358; State v. Miller, 71 Kan. 200, 80 P. 51, 6 Ann.Cas. 58. In the Miller Case, supra, the Supreme Court of Kansas said:

"In his appeal he complains that Mollie was permitted to testify as to the birth and parentage of the child, the fruit of the illicit relation. Having testified to the intercourse, it was competent for her to state that conception followed, and that the defendant was the father of the child so begotten."

The next insistence of error is, in our opinion, equally without merit. It relates to the following as shown by the record: The defendant introduced as a witness Eva Crowell, and she testified:

"I know Minnie Lee Crabtree, and remember when she had a baby back here in March, 1923. I was with her when she had the baby."

She was then asked:

"Q. I will ask you whether or not that is what you would call a nine months old baby?"

The court sustained state's objection to this question. Defendant excepted. Continuing, witness stated:

"I am 36 years old--soon will be--and have five children of my own. The only experience I have had with babies is with my own and in helping with this one. I have had five of my own and have seen little babies when they were first born--have seen them quite often."

She was then asked by defendant:

"Q. I will ask you whether this baby of Minnie Lee's when it was born was a fully developed baby, normal in every respect?"

The record shows:

"The state objected because

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