Mitchell v. State

• Decision Date: 23 January 1962
• Docket Number: 5 Div. 601
• Citation: 42 Ala.App. 41,151 So.2d 752
• Parties: Terry Dennis MITCHELL v. STATE.
• Court: Alabama Court of Appeals

Page 752

151 So.2d 752

42 Ala.App. 41

Terry Dennis MITCHELL v. STATE.

5 Div. 601.

Court of Appeals of Alabama.

Jan. 23, 1962.

Rehearing Denied March 13, 1962.

Brown & McMillan, Opelika, for appellant.

MacDonald Gallion, Atty. Gen., John G. Bookout, Asst. Atty. Gen., and Herbert D. Schaefer, Montgomery, Legal Research Aide, for the State.

HARWOOD, Presiding Judge.

This appellant stands convicted of seduction, an offense denounced by Sec. 419, Tit. 14, Code of Alabama 1940, which reads as follows:

'Any man who, by means of temptation, deception, arts, flattery, or a promise of marriage, seduces any unmarried woman in this state, shall, on conviction, be imprisoned in the penitentiary for not less than one nor more than ten years; but no indictment or conviction shall be had under this section on the uncorroborated testimony of the woman upon whom the seduction is charged; and no conviction shall be had if on the trial it is proved that such woman was, at the time of alleged offense, unchaste.'

In the trial below the prosecutrix, who was under the age of 21 years at the time of the alleged offense, testified that she first met the appellant in 1958. They saw each other frequently and in not too long a while, that is in July 1958, they became engaged, the appellant giving the prosecutrix an engagement ring. The prosecutrix and the appellant quarreled in May 1959, and their engagement was broken.

The prosecutrix next saw the appellant in August 1959, when he came by her home rather late at night. They sat on the porch and talked for some time and the appellant told her that he had broken his engagement to a girl in Birmingham, and that he wanted to marry the prosecutrix. According to the prosecutrix, the appellant had been drinking at the time of this visit.

The prosecutrix next saw the appellant when he came back to school early, to be with her, he said. This was on the weekend of 19 September 1959. She went out with him that night, and he was at her home the next day. Her mother went to the hospital that day, and the appellant came to the hospital after lunch. He was among several visitors in the mother's room. Late in the afternoon he drove one of the visitors, prosecutrix's grandmother, to her home and returned to the hospital in about 45 minutes. When he returned to her mother's room in the hospital the prosecutrix testified that the following conversation took place:

'A Well, no one else was in the room except Terry and Mother and I, and he went down and got us some Coca Colas and came back, and I told him I had told Mother about us going back together again, and I told her that I had been promised a five dollar raise at the office and that----

'MR. BROWN: Now, I--excuse me, go ahead. I beg your pardon.

'Q (BY MR. YOUNG) Go ahead.

'A And I thought maybe we could get married now, and when Terry came back I told him I had told Mother, and he seemed pleased and he hugged Mother's neck.

Q What, if anything, did he say to your mother?

'A He didn't have very much to say; he was just happy, I think. I think both of us were.

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'Q (BY MR. YOUNG) Well, just tell what happened, Miss Starling, go on and tell what happened there at the hospital please ma'am, from the time he got back from carrying your grandmother home.

'A Well, he went and got some Coca Colas for us, and nobody was there but Mother and Terry and I, and I told Mother that we had made up and that I thought that we could get married pretty soon, and that I had been promised a five dollar raise where I worked, and I thought that would help us. And Terry came back in, and I told him that I had told Mother about us, and he went over and hugged Mother's neck, and that's about all he said.'

After about 30 minutes or an hour, the prosecutrix and the appellant left the hospital. They drove to a drive-in restaurant and had sandwiches. After they had finished eating, they drove out to a lake near Bleeker and parked. As to what occurred while they were parked on the lake, the prosecutrix testified as follows:

'A We talked about this girl that had broken us up and the reason for it, and we talked about his family and my family, and how we thought we could get along with each other, and he told me that he loved me and he kissed me several times as we were talking, and he said that it had been hard on him having to be away from me so long, and that he still loved me and wanted to marry me, and that he had been working that summer and he had some money now and we could go ahead and get married without his mother coming into it, and he told me that he wanted me and that he needed me and that----

'MR. YOUNG: Just a minute, please ma'am. All right go ahead.

'A And that he loved me, and that if I loved him enough I would prove it.

'Q That if you loved him enough you would prove it? Is that what he said to you?

'A Yes, sir.

'Q All right, go ahead, please ma'am.

'A And he kept talking to me, and I loved him and I thought that he loved me, and--I went with him.'

The prosecutrix further testified that at the time that she had sexual relations with the appellant she was chaste and had not had previous sexual relations with the appellant, or with any other man.

On cross-examination the prosecutrix testified that she had filed a civil suit against the appellant claiming damages of $50,000.00 in September 1960, and that she had employed Mr. James Noel Baker to prosecute said action, and that she had employed Mr. Baker as special prosecutor in the present proceeding. She further testified that she had instigated bastardy proceedings against this appellant which had been 'thrown out' on technicalities.

Prosecutrix further testified that she had 'parked' at various places around Auburn with the appellant, that she had visited his apartment on numerous occasions, on which visits she would clean up his apartment and several times cooked meals for him. She and her mother would often do the appellant's laundry. Prosecutrix denied that on any of the above occasions she had engaged in sexual intercourse with the appellant.

Prosecutrix testified that she had driven with the appellant and another couple to a houseparty given by the appellant's fraternity at a motel on the Florida coast near Destin. She denied any improper conduct on this trip but stated that she had been in the appellant's room at the motel in that there was visiting back and forth and from room to room by the members of the houseparty. This houseparty had at least three chaperones.

The mother of the prosecutrix testified that during the time the appellant and the prosecutrix were engaged he was frequently in their home and had meals with the family from time to time. The appellant came in and out of their home as he pleased and they were always glad to see him.

As to the occasion of the appellant's visit to her hospital room on 20 September 1959, this witness testified as follows:

'Q (BY MR. YOUNG) Your daughter told him in your presence what?

'A That she had told me about their plans to get married.

'Q What, if anything, did Dennis Mitchell do or say then, please ma'am?

'A He--well, it was an exclamation of pleasure. He said, 'Good, I'm glad you did,' and----

'Q What, if anything, did he do?

'A He kissed me on the cheek just a little later than that. They talked for a few minutes, and he did kiss me on the cheek.

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'Q Well, after he kissed you on the cheek, do you recall what the conversation was?

'A The conversation to me was that he would still try to be good to her.

'Q Try to be good to her? You say he said he would still try to be good to her?

'A Yes, sir. That was what he told us when he first asked if he could marry her.'

The father of the prosecutrix testified that when he learned of his daughter's pregnancy, he contacted the appellant at his fraternity house in Auburn. The appellant accompanied him to his automobile and they rode around, the prosecutrix's mother also being in the car. During the ride, according to this witness, the following conversation ensued:

'A Well, his words were, after I told him--what I asked him about, which you won't let me tell--his words were, he said, 'I think you're asking too little of me.' And, he said, 'I'll go home tonight, or Saturday, over the weekend, and talk to my mother and tell her that me and Annice married in September, and I will be back here Monday morning and I'll meet you at the bus station and from there we'll go on down, we'll go on down and I'll do the right thing about it.''

The next time this witness saw the appellant was at the preliminary trial pursuant to this prosecution.

In his own behalf the appellant testified that he was a student at Auburn University, in the sophmore class. He met the prosecutrix at a drive-in restaurant known as 'Stoker's' and thereafter began seeing her frequently. He and the prosecutrix became engaged in July 1958.

The appellant testified that he first had sexual intercourse with the prosecutrix about a month and a half after he first met her; that the prosecutrix visited him at his apartment two or three times a week, sometimes in the afternoon and sometimes at night, and that he had sexual intercourse with her on some of these visits. As to the houseparty in Florida, the appellant testified that he and the prosecutrix stayed in one bed in one room and another couple were in the second bed in the same room.

The appellant further testified that he and the prosecutrix had twice broken their engagement, the second time in the spring of 1959. He stated however, that he had seen the prosecutrix in the summer of 1959, and they had had sexual relations. Later in the summer, he called the prosecutrix over the telephone, and she had indicated during this conversation that she might be pregnant, but she further stated that she did not want to marry the appellant, being still bitter over their two prior breakups.

The appellant testified that on his visit to the mother of the prosecutrix in...