Duncan v. State

• Decision Date: 22 July 1924
• Docket Number: 8 Div. 229.
• Citation: 20 Ala.App. 209,101 So. 472
• Parties: DUNCAN v. STATE.
• Court: Alabama Court of Appeals

101 So. 472

20 Ala.App. 209

DUNCAN v. STATE.

8 Div. 229.

Court of Appeals of Alabama

July 22, 1924

Rehearing Denied Aug. 19, 1924.

Appeal from Circuit Court, Madison County; James E. Horton, Jr. Judge.

Bob Duncan was convicted of incest, and he appeals. Affirmed.

Certiorari denied by Supreme Court in Ex parte Duncan, 101 So. 475.

Robert Milner, of Huntsville, for appellant.

Harwell G. Davis, Atty. Gen., and Lamar Field, Asst. Atty. Gen., for the State.

BRICKEN P.J.

From a judgment of conviction for incest the defendant appealed.

It was contended by the state that the defendant had sexual intercourse with his own daughter, a young girl about 13 years of age. His conviction rested upon the sole testimony of the girl herself, and there was no corroboration of any material fact given in evidence by any other witness. On her direct examination the girl gave evidence to the effect that she knew what intercourse was, and that on every cold night her father would get in bed with her and have intercourse. On her cross-examination, she testified that he never did have intercourse with her, but that he tried. And upon her redirect examination she stated that he did have intercourse with her one time. This evidence, as well as other filled with like discrepancies and contradictions given by this witness, of necessity presents the questionable verity of the testimony. But notwithtanding this, the probative force of her evidence was for the jury who tried this case, and not for this court.

As stated, the conviction of this defendant rested solely upon the uncorroborated evidence of the girl in question, and the appellant here earnestly insists that the facts adduced upon this trial constitute said witness an accomplice in the commission of the offense, if offense there was, and it is further insisted that the provisions of section 7897 of the Code 1907 should apply. Said section expressly provides that a conviction of felony cannot be had on the testimony of an accomplice, unless corroborated by other evidence tending to connect the defendant with the commission of the offense etc. The important question therefore is Was the girl in question an accomplice? In support of the insistence that she was an accomplice, we are cited the case of Denton v. State, 17 Ala. App. 309, 85 So. 41. We gather that the portion of the opinion relied upon here is where this court, through Samford, J., said:

"After carefully considering the evidence in this record, we fail to find facts sufficient to corroborate the testimony of the woman, who alone testified to the facts constituting the crime with which defendant is charged. If the crime was committed with the consent of the principal witness, the defendant would have been entitled to the general charge. Code 1907, §§ 7878, 7127. It is true, the woman testified that at each recurrent act the defendant used threats and intimidations, and that she yielded to him through fear, but the rape was too often repeated and continued too long without outcry for full credence to be given to the statement. But this question is not presented in such way as that it can be considered by this court on appeal, but may be a proper case for the consideration of the pardoning power."

We are of the opinion that the above holding cannot be taken as authority to sustain the insistence here made. In the first place, the quoted portion of the opinion was not necessary to a decision in the Denton Case, and therefore dictum. Moreover, this case must be differentiated from the Denton Case in that it affirmatively appears that the alleged injured party in this case was only 13 years of age at the time of the alleged commission of the offense and under the laws of this state was incapable of consenting to the commission of the alleged crime. In other words, it affirmatively appears she was too young to be able to give legal assent, and therefore she could not be held to have willfully or willingly joined in the incestuous act complained of. It is true that under the statute, Code 1907, § 7127, it is provided if any man and woman, being within the degrees of consanguinity or relationship within which marriages are declared by law to be incestuous and void, and knowing of such consanguinity or relationship, intermarry, or have sexual intercourse together, or live together in adultery, each of them would be guilty. But certainly this statute implies that each of the parties must be capable of committing the offense and under the law able to give legal assent thereto. The age of consent in this state is 16 years; and in all proceedings for having carnal knowledge of, or sexual intercourse with, a girl child under the age of 16, the consent of the girl is immaterial and affords no defense in actions of this character (except, that this law does not apply to boys who are under the age of 16 years). Acts 1915, p. 137.

The general rule, which seems to be supported by the great weight of authority, is that a woman who consents to the crime of incest knowingly, voluntarily, and with the same intent which actuates the man, is his accomplice, and her testimony is governed by the law of accomplice testimony. 31 Corpus Juris, p. 387. On the other hand, it is very generally held that, where the alleged injured party is not an accomplice, or in other words where she is the victim of force, or fraud or undue influence, or is too young to be able to give legal assent, so that she does not willingly or willfully join in the commission of the incestuous act, her testimony alone will be sufficient to sustain a conviction of incest. Authorities, supra.

In the case of Whittaker v. Com., 95 Ky. 632, 27 S.W. 83 (a case almost identical to the one at bar), it was held that under an indictment for incest committed by the defendant with his daughter, a conviction might be sustained on the testimony of the daughter alone, as she was incapable of consenting to the act and could not be regarded as an accomplice. The court said:

"The appellant was indicted, tried, and convicted for the crime of incest. He denied his guilt, and his conviction was secured on the testimony alone of his minor daughter, the alleged victim of his lust. There was no testimony in corroboration of the daughter, and for this reason it is insisted that the jury should have been told to acquit. They were, in effect, told that they might infer the consent of the daughter to the carnal knowledge of the father from its long continuance without complaint from her, and that, if there was such consent, then the daughter was an accomplice and they could not convict on her testimony alone, unless they believed such connection or carnal knowledge was had by the undue influence of the accused. This instruction was more favorable to the appellant than he was entitled to. There could be no such consent as to affect in any

way the guilt of the accused. The crime was committed against the daughter. She was not the accomplice, but the victim, of her father." From what has been said the defendant was not entitled to the affirmative

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