Davis v. State
| Decision Date | 20 January 1925 |
| Docket Number | 1 Div. 581 |
| Parties | DAVIS v. STATE. |
| Court | Alabama Court of Appeals |
Appeal from Circuit Court, Mobile County; Saffold Berney, Judge.
George A., alias Ollie, Davis was convicted of having carnal knowledge of a girl between the ages of 12 and 16 years, and he appeals. Reversed and remanded.
Outlaw & Kilborn, of Mobile, for appellant.
Harwell G. Davis, Atty. Gen., and Lamar Field, Asst. Atty. Gen., for the State.
On the trial of this case the prosecuting witness, a girl about 17 years of age at the time of trial, was permitted to testify over the objection of defendant that at a certain time defendant "tried to have intercourse with me." It is insisted here that this is a conclusion of the witness. It is true that in Dean v. State, 19 Ala.App. 96, 95 So. 328, this court held that a witness could not testify to the conclusion, "He was trying to force an intercourse with me," but the question here is very different. In the Dean Case the conclusion was as to force and not as to intercourse. Intercourse between male and female is quite well understood, while force is a relative word requiring facts from which conclusions may be drawn. The statement of the witness in this case cannot be classed as a conclusion. 1 Mayfield, p. 336(27).
The question of election as to which act the state is proceeding on does not arise in this case. The only evidence of carnal knowledge is confined to one time, to wit, some time after an occurrence at defendant's home in the month of July, when defendant was fondling and loving and kissing the girl, and tried to have intercourse but could not succeed. One of the exceptions to the general rule that proof of other acts may not be admitted is in a prosecution for carnal knowledge of a girl under the age of consent where the acts took place prior to the act charged in the indictment, as tending to sustain the principal charge. Thomas v. State (Ala.App.) 101 So. 93; 22 R.C.L. p. 1205, par. 40. Upon this principle, acts of undue familiarity between the defendant and the girl prior to the act of carnal knowldge complained of, naturally leading towards cohabitation, are relevant and admissible in evidence as tending to corroborate the main fact in issue.
In a prosecution for carnal knowledge of a girl under 16 years of age, the paternity of a baby born to the girl is not necessarily a material inquiry. The fact that the girl gave birth to a child is material and relevant as tending to prove the corpus delicti. We know as a scientific fact that when a child is born there has been an act of sexual intercourse and as a matter of common knowledge we also know that the period of normal gestation is approximately 270 days. So that the proof of the birth of a child to a girl under 16 years of age may be said to establish the fact of carnal knowledge and to tend to fix the time at which the crime was committed. But neither of these facts can be taken as evidence that the defendant is the guilty agent. 33 Cyc. p. 1476.
The fact, if it be a fact, that another than defendant had had carnal knowledge of the girl along about the time as fixed by the state in its charge against the defendant is immaterial to this inquiry. Each act of carnal knowledge of a girl under 16 years of age is a separate and distinct offense, and the fact that another than defendant was also guilty of a crime with the girl would in no wise tend to exonerate defendant or shed any light on this transaction. Martin v. State, 17 Ala.App. 73, 81 So. 851; Bryan v. State, 18 Ala.App. 199, 89 So. 894.
The state had offered evidence tending to prove that the girl in this case gave birth to a child on March 26th, after the alleged crime had been committed. This evidence was admissible for the purpose of proving a crime and fixing the time. In rebuttal of this the defendant should have been permitted to prove by the physician attending at the birth as to whether the child born had come to a natural development at the time of birth. Courts cannot ignore well-known natural laws, and physical conditions relating to birth of children may become very important in corroborating or contradicting the testimony as to the time at which a crime of this nature was committed.
There was no evidence of the correctness of the marriage certificate of the sister of the witness Howell, which was offered in connection with the testimony of Howell as to the age of the girl, and for that reason the certificate was properly excluded. The age of the girl was a material inquiry and...
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Bowden v. State
...and as a matter of common knowledge we also know that the period of normal gestation is approximately 270 days.' [Davis [v. State ], 20 Ala.App. at 464, 103 So. at 74 (1925) ]. In light of the properly admitted fact of the prosecutrix's pregnancy, which allegedly resulted from the charged a......
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Watson v. State, 5 Div. 56
...and as a matter of common knowledge we also know that the period of normal gestation is approximately 270 days." Davis., 20 Ala.App. at 464, 103 So. at 74. In light of the properly admitted fact of the prosecutrix's pregnancy, which allegedly resulted from the charged act, and Watson's defe......
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Eddy v. State
...offenses mentioned in argument had no relevance to the issues of the cases and no basis in the facts of the cases: Davis v. State, 20 Ala.App. 463, 103 So. 73 (where the offense was carnal knowledge and the prosecutor in argument accused the defendant of the unrelated offense of being the f......
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N.T.C. v. M.S.C.
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