Kirby v. State

• Decision Date: 09 May 1912
• Citation: 59 So. 374,5 Ala.App. 128
• Parties: KIRBY v. STATE.
• Court: Alabama Court of Appeals

59 So. 374

5 Ala.App. 128

KIRBY v. STATE.

Court of Appeals of Alabama

May 9, 1912

Rehearing Denied May 28, 1912.

Appeal from Circuit Court, Elmore County; W. W. Pearson, Judge.

Arthur Kirby was convicted of crime, and he appeals. Affirmed.

The following charges were refused to the defendant:

"(1) The court charges the jury that, unless the defendant put the prosecutrix in fear of her life or of great bodily harm at his hands, the defendant would not be guilty of rape if the prosecutrix submitted and consented to the act of penetration.

"(2) The court charges the jury that in considering the evidence you may consider the absence of the efforts on the part of the prosecutrix to avoid the act, and unless there was such force, actual or constructive, as to overcome the resistance of the prosecutrix, you cannot convict the defendant of rape.

"(3) The court charges the jury that unless the evidence convinces you that the defendant used such force in taking the prosecutrix out of the buggy and bringing her back and forcing her or laying her on the laprobe as would constitute assault and battery, if the prosecutrix yielded her consent at any time before the act of penetration was complete, then the defendant would not be guilty of rape but might be guilty of assault and battery."

"(7) If the jury believe from the evidence that the conduct of the prosecutrix was such towards the defendant at the time of actual penetration, if there was a penetration, as to create in the mind of the defendant the honest and reasonable belief that she had consented or was willing for defendant to penetrate her, they must acquit the defendant.

"(8) Before the jury can convict the defendant, they must believe from the evidence that the act must have been committed forcibly and against the consent of Annie Burt, the prosecutrix."

"(16) The court charges the jury that, before they can decide that the prosecutrix was under duress at the time of the commission of the alleged act, they must be satisfied from the evidence beyond a reasonable doubt that the conduct of the defendant towards her was such as to create in her mind such reasonable apprehension of death or bodily harm as to overpower her will."

Lancaster & Smoot, of Wetumpka, for appellant.

R. C. Brickell, Atty. Gen., and W. L. Martin, Asst. Atty. Gen., for the State.

PELHAM, J.

The appellant's motion to quash the venire because the court failed to comply with the requirements of section 32 of the jury law (Acts 1909, p. 317) is not supported by the recitals of the judgment entry set out in the record; but, on the contrary, the judgment entry shows that the defendant and his counsel were present in open court on November 13th, when the order of the court was made fixing the number of jurors to constitute the venire for the trial of the case and setting the case for trial on November 15th.

The court's order that the venire and a copy of the indictment should be served forthwith on the defendant is in strict compliance with the statute, and the judgment entry recites that the order of the court was complied with. The present jury law provides (section 32) that "a list of the names of all the jurors summoned for the week in which the trial is set and those drawn as provided by this section together with a copy of the indictment, shall be forthwith served on the defendant by the sheriff, and the defendant shall not be entitled to any other or further notice of the jurors summoned or drawn for his trial, nor of the charge or indictment upon which he is to be tried." This law being a general law, it repeals all other general laws that may be in conflict with it (Patterson v. State, 54 So. 696), and consequently so operates on section 7840 of the Code, with which it is in conflict, and it is therefore not a requisite of the law now in force that service of copies of the venire and indictment must be made on the defendant one entire day before the case is set for trial (Welch v. State, 1 Ala. App. 144, 56 So. 11). It would not appear that any constitutional right to have a copy of the accusation against him was withheld from the defendant, as the judgment entries show that the court on November 13th, the day the case was set for trial, ordered the jury lists and a copy of the indictment to be served on the defendant forthwith, and that this order was complied with, and that the defendant was not arraigned for trial until the second day thereafter, or November 15th.

There is no merit in the contention of the appellant's counsel that section 32 of the present jury law (Acts 1909, p. 317) is violative of section 45 of the Constitution. The act in question relates to the jury system of the state, as indicated by its title, and the provisions of section 32 are clearly germane to the subject-matter of the act as indicated by its title.

The propositions above discussed are the only matters argued by counsel for appellant in brief, but we have considered all of the rulings on the evidence, and find no error prejudicial to the defendant in any of them. The court, in admitting in evidence a confession or incriminating statement made by the defendant, erroneously stated that whether or not such a statement is voluntary is a question for the jury to...