Durham v. State
| Decision Date | 25 November 1969 |
| Docket Number | 1 Div. 6 |
| Citation | 250 So.2d 693,47 Ala.App. 89 |
| Parties | v. STATE. |
| Court | Alabama Court of Criminal Appeals |
William C. Taylor, Mobile, for appellant.
MacDonald Gallion, Atty. Gen., and Marlin Mooneyham, Asst. Atty. Gen., for the State.
Appellant was convicted of carnal knowledge of a girl over twelve and under sixteen years of age. Tit. 14, § 399, Code of Alabama 1940. His sentence was ten years.
The indictment was in code form, Tit. 15, § 259 (36), Code of Alabama 1940, and charged as follows:
'* * * that, before the finding of this indictment David G. Durham, whose name is to the Grand Jury otherwise unknown than as stated, did carnally know, or abuse in the attempt to carnally know Evelyn Nelson, a girl under the age of sixteen years and over the age of twelve years, against the peace and dignity of the State of Alabama.'
Appellant insists that his demurrer should have been sustained because the indictment was vague, did not set out the age of the girl, and failed to fix the date of the commission of the alleged offense. We are not so persuaded. This particular code form of indictment has been held sufficient. Belton v. State, 212 Ala. 265, 102 So. 220; Owens v. State, 29 Ala.App. 53, 191 So. 899; McGuff v. State, 88 Ala. 147, 7 So. 35; Bradley v. State, 21 Ala.App. 539, 110 So. 157; Bryan v. State, 18 Ala.App. 199, 89 So. 894; Miller v. State, 16 Ala.App. 534, 79 So. 314.
The evidence tended to show that the prosecutrix, Evelyn Nelson, lived in the same house with appellant. He was her stepfather and had married Evelyn's mother in 1956. Evelyn testified that he had sexual intercourse with her on several occasions, that 'this happened at every opportunity that no one was home and that he (appellant) had a chance.'
At the beginning of the trial, there was some confusion as to the age of the prosecutrix. There was also confusion as to which particular act of sexual intercourse was the basis of the prosecution. Evelyn initially testified that appellant had sexual intercourse with her on June 13, 1967. It was then realized that she was born January 23, 1951, and was over the age of sixteen on that particular occasion.
This was objected to by the defense counsel and, after discussions outside the presence of the jury, the State then proceeded to offer evidence that appellant had had sexual intercourse with the prosecutrix on December 5, 1966, when the prosecutrix was fifteen years of age. Appellant's attorney insists in brief that it was error for the trial judge to admit evidence of sexual relations which might have occurred either before or after the date the State elected to use as the basis of the prosecution.
We do not think it was error to admit such testimony in view of Harrison v. State, 235 Ala. 1, 178 So. 458. We agree that the State, to meet the requirements of the indictment, should have first introduced evidence of sexual intercourse which occurred on December 5, 1966. However, we do not think this was so prejudicial as to cause a reversal. We conclude that the act committed June 13, 1967 was admissible as tending to show relation and intimacy of the parties and was not so distant in point of time as to be without probative force. The rule is well stated in Harrison, supra, as follows:
'While this court has not had occasion to consider the question of the admissibility of evidence showing acts of sexual intercourse, subsequent to the act constituting the offense, in cases of statutory rape, we hold that the weight of authority sustains the proposition that it is permissible for the prosecutors to offer evidence of such acts occurring before and after the alleged act on which the indictment is based, as tending to sustain the principal charge by showing the relation and intimacy of the parties. 22 R.C.L. 1205, § 40; People v. Thompson, 212 N.Y. 249, 106 N.E. 78, L.R.A.1915D, 236, Ann.Cas.1915D, 162; Note, 8 Ann.Cas. 461; Boyd v. State, 81 Ohio St. 239, 90 N.E. 355, 135 Am.St.Rep. 781, 18 Ann.Cas. 441, and note page 443; State v. Sebastian, 81 Conn. 1, 69 A. 1054, 1055.
'In the last-cited case the defendant was convicted of the statutory offense of carnally knowing and abusing a female child of the age of fifteen years; the court upheld the admissibility of evidence of subsequent acts committed by the accused upon the same child, for the reason
...
To continue reading
Request your trial
-
Bowden v. State
... ... State, 159 Md. 161, 150 A. 278 [ (1930) ]." (Emphasis added.) ... 249 Ala. at 101, 30 So.2d at 35-36. However, approximately 22 years later, in the case of Durham v. State, 47 Ala.App. 89, 250 So.2d 693 (1969), then-Judge Almon, writing for the Court of Criminal Appeals, expressly relied upon Lee and concluded that it was permissible to allow ... "Rita Nelson, age thirteen at the time of trial and sister of the prosecutrix ... to testify ... ...
-
Watson v. State, 5 Div. 56
... ... State, 417 So.2d 594, 596-97 (Ala.Cr.App.1982) (wherein the court, in reviewing the appellant's conviction of rape in the second degree of his daughter, held that his daughter's testimony about her father's prior sexual misconduct toward her was properly admissible under Ex parte Deason ); Durham v. State, 47 Ala.App. 89, 250 So.2d 693 (1969), cert. denied, 287 Ala. 731, 250 So.2d 695 (1970) (wherein, in a carnal knowledge case, the court followed Harrison in affirming admission of evidence of subsequent sexual relations); Hunt v. State, 44 Ala.App. 479, 213 So.2d 664, cert. denied, 282 ... ...
-
State v. Collier
... ... See, e.g., Durham v. State, 47 Ala.App. 89, 250 So.2d 693, 695 (1969) (“[A] girl under sixteen years of age cannot give legal assent. Therefore, she cannot be particeps criminis in statutory rape and, consequently, no corroboration is necessary.”), abrogated on other grounds by Anonymous v. State, 507 So.2d ... ...
-
Staten v. State
... ... State, 417 So.2d 594, 596-97 (Ala.Cr.App.1982) (wherein the court, in reviewing the appellant's conviction of rape in the second degree of his daughter, held that his daughter's testimony about her father's prior sexual misconduct toward her was properly admissible under Ex parte Deason); Durham v. State, 47 Ala.App. 89, 250 So.2d 693 (1969), cert. denied, 287 Ala. 731, 250 So.2d 695 (1970) (wherein, in a carnal knowledge case, the court followed Harrison in affirming admission of evidence of subsequent sexual relations); Hunt v. State, 44 Ala.App. 479, 213 So.2d 664, cert. denied, 282 ... ...