Herbert v. State

• Decision Date: 26 June 1917
• Docket Number: 8 Div. 526 [*]
• Citation: 77 So. 83,16 Ala.App. 213
• Parties: HERBERT v. STATE.
• Court: Alabama Court of Appeals

77 So. 83

16 Ala.App. 213

HERBERT v. STATE.

8 Div. 526 ^[*]

Court of Appeals of Alabama

June 26, 1917

On Rehearing, November 20, 1917

Appeal from Law and Equity Court, Morgan County; Thomas W. Wert Judge.

Lawrence Herbert was convicted of seduction, and appeals. Affirmed and application for rehearing overruled.

The defendant was indicted at the fall term, 1916, for seduction was convicted, and from the judgment he appeals.

On the trial, the state offered testimony by the prosecutrix that the first act of intercourse took place in November, 1913 that there was a promise of marriage, and that it was by reason of the promise of marriage that prosecutrix yielded to the desires of defendant. After this, the state, over the objection and exception of defendant, was permitted to offer testimony of frequent acts, visits, and relation existing between the parties for a period extending into the year 1916, at which time it became known that the girl was pregnant and demanded of defendant that he fulfill his promise and protect her against humiliation. It is shown by the evidence without conflict that during all this time the defendant was a constant visitor of prosecutrix at her home, where she lived with her mother, showing her such attentions as a suitor usually shows to the girl he intends to wed, and it is also shown that during these visits there were frequent acts of intercourse between them; the girl yielding each time under the promises and endearing terms of the defendant. This last is denied by the defendant; but there is an entire absence of any evidence tending to show that the girl was visited by other young men, or that she was in any wise unfaithful or untrue to the defendant. The testimony of the prosecutrix is abundantly corroborated by other witnesses, so as to authorize a conviction under the statute requiring corroboration. The defendant denies the promises and endearing terms, but admits the relationship, and testifies that it began in 1911, instead of November, 1913, and under circumstances, if the defendant is to be believed, as to tend to prove the unchastity of the prosecutrix, and claims that it ended in the spring of 1915, before the girl became pregnant. It was shown that the defendant was arrested in a distant state, and, in explanation of his leaving the state where he was born and raised and worked at his trade, he said that in June, 1916, about a month after the girl's brother had called on him to make good his promise of marriage, he had an offer of better wages in Arkansas, and went there to work.

Defendant objected to the testimony as to all acts of intercourse, endearing terms, attentions, and promises of marriage after November, 1913. The court overruled these objections, and defendant excepted.

The court refused the following written charges requested by the defendant:

(2) If you believe the evidence in this case, you will find for the defendant. ***

(A) If you believe the evidence, you will find the defendant not guilty.

(10) If you believe from the evidence that the defendant had several intercourses with Elizabeth Henderson in November, 1912, and continued in such acts of sexual intercourse until November 19, 1913, they must find him not guilty.

(13) I charge you that in order to find the defendant guilty the evidence must show more than a mere promise of marriage and subsequent illicit intercourse.

(C) If you believe from the evidence that the prosecutrix, Miss Henderson, was unchaste at and prior to the time the defendant first met her, then I charge you that the burden of proof is upon the state to establish by the evidence, beyond a reasonable doubt, that the prosecutrix had reformed, and that she was chaste at the time the defendant promised defendant to marry her, and thereby induced her to have sexual intercourse with him.

(8) If the jury believe from the evidence that the defendant had sexual intercourse with Miss Henderson for some time prior to November 19, 1913, with her consent, and continued in such acts of sexual intercourse until November 19, 1913, then I charge you that Miss Henderson on said last date was within the eyes of the law unchaste, and your verdict should be for the defendant, although you may believe that on said November 19, 1913, the defendant made promises of marriage to the prosecutrix, Miss Henderson, and told her that he loved her and would protect her and by reason of such promises and statements she yielded to his request.

Tennis Tidwell, of Albany, and Callahan & Harris, of Decatur, for appellant.

W.L. Martin, Atty. Gen., and P.W. Turner, Asst. Atty. Gen., for the State.

SAMFORD J.

The objections to the testimony as to the subsequent and...