Green v. State
| Decision Date | 15 May 1923 |
| Docket Number | 6 Div. 161. |
| Citation | 96 So. 651,19 Ala.App. 239 |
| Parties | GREEN v. STATE. |
| Court | Alabama Court of Appeals |
Appeal from Circuit Court, Blount County; O. A. Steele, Judge.
Joseph Green was convicted of rape, and he appeals. Reversed and remanded.
Russell & Johnson, of Oneonta, for appellant.
Harwell G. Davis, Atty. Gen., for the State.
The evidence for the state makes out a case of rape, but it will not be necessary to make a statement of the facts, further than will hereinafter appear. Nor will it be necessary to specifically note each exception reserved on the trial. The appellant in his brief filed has pointed out such rulings of the court as are worthy of serious consideration.
It has long been the law, and many times decided by this court and the Supreme Court, that, in prosecutions for rape, the state may show, in corroboration of the testimony of the assaulted female, that she, shortly after outrage committed upon her, made complaint of such occurrence to others; such testimony being limited to the complaint omitting all details. This testimony is admissible on the theory that, when an outrage has been committed on a woman the instincts of her nature prompt her to make her wrongs known, and to seek sympathy and assistance. Being the result of the natural impulse, if not too long delayed, is in a sense a part of the res gestæ. Posey v. State, 143 Ala. 54, 38 So. 1019; 22 R. C. L. 1213. But the details of the crime are not admissible as a part of the statement, nor where the identity is disputed, the identity of the offender. Authorities, supra. In this case, the testimony was confined to the bare complaint, and the several rulings of the court in relation thereto were without error.
The defendant, during the progress of the trial, offered to prove, by various witnesses, acts of undue intimacy between the prosecutrix and defendant on several occasions preceding the alleged rape. These acts were not of actual sexual intercourse, but were of such a nature as tended to show such intimacy between the parties as led to a consummation of sexual desires, and in a prosecution for adultery would undoubtedly have been admissible as tending to establish the necessary agreement between the parties. Being testimony bearing upon the probable consent of the woman at the time of the alleged rape, such evidence should have been admitted. 22 R. C. L. p. 1210, par. 44; Story v. State, 178 Ala. 98, 59 So. 480; McQuirk v. State, 84 Ala. 435, 4 So. 775, 5 Am. St. Rep. 381; Barnes v. State, 88 Ala. 204, 7 So. 38, 16 Am. St. Rep. 48.
The general character of the prosecutrix for chastity may also be impeached; but this must be done by general evidence, and not by particular instances of unchastity, nor as to a criminal intimacy with any other person. Story v. State, 178 Ala. 98, 59 So. 480.
The place at which the rape is alleged to have been committed having been identified, it was competent for the state to prove by witnesses, who examined the place shortly after the occurrence, the facts describing the place, including the tracks, and the appearance of the ground. In the case of Barnes v. State, cited as a contra authority, the conclusion is based upon a failure to identify the locus in quo. Roberts v. State, 122 Ala. 47, 25 So. 238.
In the court's oral charge, the...
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...393; Hendon v. State, 32 Ala.App. 615, 29 So.2d 360. It was approved in these: Doty v. State, 9 Ala.App. 21, 64 So. 170; Green v. State, 19 Ala.App. 239, 96 So. 651; McHan v. State, 20 Ala.App. 117, 101 So. 81. It evident that the three last cited cases are out of harmony with the holding o......
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