Moore v. State, 6 Div. 939.

• Citation: 30 Ala.App. 552,9 So.2d 146
• Decision Date: 30 June 1942
• Docket Number: 6 Div. 939.
• Parties: MOORE v STATE.
• Court: Alabama Court of Appeals

9 So.2d 146

30 Ala.App. 552

MOORE v STATE.

6 Div. 939.

Alabama Court of Appeals

June 30, 1942

Gerald & Gerald, of Clanton, for appellant.

Thos S. Lawson, Atty. Gen., and Wm. N. McQueen, Asst. Atty. Gen for the State.

SIMPSON, Judge.

The defendant appeals from a conviction of rape and a sentence of twenty years imprisonment. He assigns as error the various rulings pending trial as well as the overruling of a motion for a new trial.

The first insistence of error is that venue was established by hearsay evidence. The prosecutrix testified that, after the alleged attack, she and defendant used a towel (given her by defendant) and that she threw it out of the car before they left the scene for the return trip home.

Several days later, she and Detective Howell found the towel at this place which, according to Howell, was about half way between Mohler's Hot House and Hollis' Dairy. Witness McAdory then testified that these two points and the intervening territory between them (and where he found the towel) were all within the jurisdiction of the Circuit Court of Jefferson County, Alabama, Bessemer Division. This competently showed the proper venue as in the Bessemer cut-off.

Venue as any other fact, may be established by either direct or circumstantial evidence, and the proof is sufficient if, from the facts and circumstances adduced, it can be reasonably inferred. Goodwin v. State, 27 Ala.App. 493, 175 So 415; Smith v. State, 21 Ala.App. 497, 109 So. 530; McGrew v. State, 21 Ala.App. 266, 107 So. 328; Palmer v. State, 168 Ala. 124, 53 So. 283; Tinney v. State, 111 Ala. 74, 20 So. 597.

The proof of venue was not rendered hearsay because the prosecutrix said she threw out the towel at the scene. The towel merely identified the place of the alleged crime, which was proved to be between the two aforementioned points and in the Bessemer Division. Her testimony as to the towel was but a link in the chain of proof which, added to that of the other two witnesses, established the venue. 23 C.J.S., Criminal Law, § 914, p. 169; Hurston v. State, 235 Ala. 213, 178 So. 223.

We do not think the cases--notably Mayhall v. State, 22 Ala.App. 223, 114 So. 361, and cases there listed--holding as inadmissible purely hearsay evidence to establish venue, have appropriate application here. Nor do the cases cited by appellant.

Coitus was not denied. As to this, the vital issue was whether or not the prosecutrix consented. She contended that she was forced to yield against her will, while he denied it, claiming that she consented. Nor was the manner of performance in dispute between them, save and except that she claims he overcame her by force. The front seat of a coupe automobile was the locus in quo and it does not appear that her underclothing was removed, damaged or torn--quoting her testimony: "He pulled my dress up and pulled my pants to the side. By 'pants' I mean silk step-ins. I did not have bloomers on, but step-ins, and they had a little elastic around the top of them." Thus it would seem that the act was accomplished with her clothing intact.

As to the conflicting evidence bearing upon the issue of consent, there was strong corroboration of the prosecutrix, including the testimony of her doctor, who examined her soon after her return home and who testified to her previous virginity. Yet, for the defendant, it can be said that this contention of non-consent was strongly rebutted by certain other facts and circumstances, such as that, though there was no claim that she yielded through fear or duress,--actual force being her claim--she bore no bruises, except a knot (no wound) on her head, a bruise on one thigh and "rubs" on her arms (there were no abrasions of the skin); she was not shown to have been disheveled or otherwise distraught upon her arrival home; her clothing was apparently intact and untorn (or there is no evidence to the contrary); nor did the defendant, who was arrested the same day (though she says he was endeavoring to kiss her during the proceeding), bear evidence of any hurts, bruises or scratches on his face to indicate her fierce resistance or a struggle between them, such as is usually expected in such a situation. All of which tends to support his defense, especially in view of the restricted and incommodious place in which the transaction admittedly took place.

The foregoing comments are without prejudice to the respective contentions of either party but in order to illustrate the striking conflict of evidence and the corroborating tendencies relatively bearing upon the testimony of each. Furthermore, it demonstrates that this issue was peculiarly for the jury, and that the defendant's motion to exclude the State's evidence and his request for a directed verdict were each without merit.

But, after full and careful study, each judge having read the whole evidence, and the court having given due consideration to the entire case, we are of the conclusion that we would be recreant to our solemn duty were we to allow the conviction to stand, thereby holding that the trial was without prejudicial error to the defendant. And we have concluded this, meanwhile mindful of the care with which the learned trial judge sought to preserve the case from error.

Even the guilty must be accorded a fair trial, free of prejudice and improper appeal to the jury. This right inheres for him as well as to the innocent in every criminal trial.

We are greatly impressed that, due to certain improper interrogation by the prosecution of the defendant and his witnesses, the unauthorized argument of State's special counsel to the jury, and certain conduct of State's counsel during the course of the trial, hereafter referred to, there was created such an atmosphere of prejudice against the defendant as was ineradicable and necessitates our ordering another trial, even though instructions to mend the matter were given to the jury by the able and astute trial judge.

The emphatic observation in our case of Pointer v. State, 24 Ala.App. 23, 27, 129 So. 787, 790, is apposite: "The practice of injecting illegal considerations into a trial through the medium of improper arguments, statements, side remarks, and intimations calculated to influence the jury, has many times been condemned by appellate courts of this state. No holding can be too emphatic, or too solemn, that such invasions of the rights of parties in civil and criminal cases cannot be tolerated by courts charged with the duty of securing to all litigants trials which are lawful, impartial, and fair, both in form and in substance. * * * The invasion of the rights of the litigant is just as great and just as injurious where side remarks or illegal arguments convey to the jury ineradicable information of a damaging nature. When a trial attorney attempts to lay illegal matter before a jury, he must know that he is presenting to their consciousness something which it is always difficult, and often impossible, to eradicate from their minds; and such conduct cannot have the approval of this court."

And from our Supreme Court we have the following concise observation: "It is now the well-established rule that, if improper argument of counsel is of such a character as to fall within that class of argumentative statements which are grossly improper and highly prejudicial, and whose evil influence and effect cannot be eradicated from the minds of the jury by any admonition from the trial judge, then a motion for new trial is due to be granted. Standridge v. Martin, supra [203 Ala. 486, 84 So. 266]; Birmingham Ry., Lt. & P. Co. v. Drennen, supra [175 Ala. 338, 57 So. 876, Ann.Cas.1914C, 1037]; F.W. Woolworth [Co.] v. Sallie Erickson, , 127 So. 534." Birmingham Baptist Hospital v. Blackwell, 221 Ala. 225, 230, 128 So. 389, 393.

It is equally well settled that "to willfully, knowingly, and insistently endeavor to inject into a case matters wholly illegal and inadmissible, in order to fasten a conviction upon a person charged and on trial for a criminal offense, should not be indulged and cannot be approved or condoned." Whitfield v. State, 21 Ala.App. 490, 491, 109 So. 524, 525. Also, Moore v. State, 26 Ala.App. 607, 164 So. 761.

A cursory review of the case reveals a studious effort--or, if not, such was its natural tendency--upon the part of the State to weave a web of suspicion of guilt about the defendant by innuendoes and questions to certain witnesses, intimating that the defendant was what associate counsel for the State finally described him to be in argument to the jury: "This sex fiend, that wants to put his hands on every woman he sees and have intercourse with her." (Exception was duly reserved to the Court's action in refusing to exclude this argument.) If he were such a man, then well to say it, but there should be some proof or inference from facts adduced to justify the accusation. Such derogation of a defendant should not be perpetrated unless based upon competent evidence or justified by legitimate inference therefrom.

As illustrative of this tendency on the part of the State to create prejudice against him, certain questions were propounded to the defendant and his witnesses which left the impression that he had been previously tried and convicted (and if not guilty thereof the whole interrogation was improper) of a similar sex crime. Such fact, if duly proved, has been held to be relevant under certain circumstances. Wilkins v. State, 29 Ala.App 349, 197 So. 75; Snead v. State, Ala.Sup., 8 So.2d 269. And we, upon first reading the record, were brought under the spell of this same impression, induced by the manner of the...