Hall v. State

• Decision Date: 20 November 1979
• Docket Number: 4 Div. 737
• Citation: 378 So.2d 1193
• Parties: Peter HALL v. STATE.
• Court: Alabama Court of Criminal Appeals

Page 1193

378 So.2d 1193

Peter HALL v. STATE.

4 Div. 737.

Court of Criminal Appeals of Alabama.

Nov. 20, 1979.

Rehearing Denied Dec. 18, 1979.

Gareth A. Lindsey, Elba, for appellant.

Charles A. Graddick, Atty. Gen., and C. Lawson Little, Asst. Atty. Gen., for the State, appellee.

LEIGH M. CLARK, Retired Circuit Judge.

On this appeal, from a conviction of rape and a sentence to imprisonment for thirty-five years, only one issue is expressly presented, to the effect that the trial court committed reversible error in admitting in evidence testimony of the prosecutrix that she became pregnant as a result of the alleged rape and was thereafter medically aborted. Appellant says that the trial court should have sustained his objection to the motion to exclude the testimony and, failing to do so, the court erred in denying his motion for a new trial by reason of the alleged error in admitting such testimony in evidence.

The parties agree that the issue is one of first impression in Alabama and that the few decisions in other jurisdictions are in conflict. See Annot: Admissibility, in nonstatutory rape prosecution, of evidence of pregnancy of prosecutrix, 62 A.L.R.2d 1083-1085 and Later Case Service. The parties also seem to agree that there is general uniformity in holding that evidence of pregnancy of the prosecutrix is admissible in cases of statutory rape. This has been definitely held in this state. Davis v. State, 20 Ala.App. 463, 103 So. 73, 74 (1925); Davis v. State, 21 Ala.App. 595, 110 So. 599 (1926); Harrison v. State, 28 Ala.App. 17, 178 So. 454 rev'd on other, but related, grounds, 235 Ala. 1, 178 So. 458 (1938).

Cases relied upon by appellant are Wilson v. State, 9 Ga.App. 274, 70 S.E. 728 (1911); State v. Chambers, 50 Wash.2d 139, 309 P.2d 1055 (1957); People v. Loftus, 34 N.Y.S.R. 525, 11 N.Y.S. 905 (1890). In Wilson v. State, supra, the court held that evidence of the Pregnancy of the prosecutrix At the time of the rape was not admissible. This is beside the point in the present case. Although distinctions are possible between the instant case and People v. Loftus, supra, and State v. Chambers, supra, we respectfully disagree with any conclusions therein to the effect that evidence of pregnancy of the prosecutrix after the alleged rape, at a time consistent with conception about the time of the alleged rape, is never admissible in prosecutions for nonstatutory rape. The better rule, in our opinion, is to the contrary. People v. Schober, 204 Cal.App.2d 459, 22 Cal.Rptr. 318 (1962); Martin v. Commonwealth, 476 S.W.2d 834 (Ky.App.) (1972); State v. McNeil, 277 N.C. 162, 176 S.E.2d 732 (1970), cert. denied 401 U.S. 962, 91 S.Ct. 967, 28 L.Ed.2d 245; State v. Cross, 284 N.C. 174, 200 S.E.2d 27, in which it is stated:

"Rape is the carnal knowledge of a female forcibly and against her will. State v. Primes, 275 N.C. 61, 165 S.E.2d 225 (1969); State v. Overman, 269 N.C. 453, 153 S.E.2d 44 (1967). There must be penetration of the sexual organ of the female by the sexual organ of the male to constitute carnal knowledge in a legal sense, but the slightest penetration is sufficient. State v. Sneeden, 274 N.C. 498, 164 S.E.2d 190 (1968). The testimony of the prosecutrix concerning her pregnancy tended to show penetration, one of the elements of rape. Defendant's plea of not guilty placed upon the state the burden of proving beyond a reasonable doubt all the essential elements of the offense charged. Hence, evidence tending to prove penetration, an essential element of the offense, was properly admitted. State v. McNeil, 277 N.C. 162, 176 S.E.2d 732 (1970); State v. Perry, 275 N.C. 565, 169 S.E.2d 839 (1969) . . . ."

There are cases of alleged rape in which the issue of guilt Vel non Has become so straitened that evidence of subsequent pregnancy, so chronologically related to that of the alleged rape as to indicate conception at that time, would not be relevant to the only Live issue between the parties. On the other hand, where the question of the existence of all three of the essential elements of rape, namely, carnal knowledge, force and lack of consent, is still an open one, evidence that is relevant to the existence or nonexistence of any one of the three essential elements is relevant to the issue of guilt Vel non. Evidence of pregnancy subsequent to the alleged crime would be relevant to the question of whether there had been carnal knowledge in rape cases for the same reason that it seems to be uniformly held relevant in cases of carnal knowledge of a female under the age of consent. True it is, that in the latter, such pregnancy would establish the corpus delicti in full, while in the former it would only show one essential element of the corpus delicti. The difference is not one as to relevance or irrelevance, but as to the weight or sufficiency of such relevant evidence. The difference is in extent or degree and not in kind.

In the first Davis v. State, supra, it is stated at 103 So. 74:

"In a prosecution for carnal knowledge of a girl under sixteen years of age, the...