Myers v. State

• Citation: 84 Ala. 11,4 So. 291
• Parties: MYERS ET AL. v. STATE.
• Decision Date: 29 May 1888
• Court: Supreme Court of Alabama

4 So. 291

84 Ala. 11

MYERS ET AL. v. STATE.

Supreme Court of Alabama

May 29, 1888

Appeal from circuit court, Calhoun county; LEROY F. BOX, Judge.

The indictment found at the February term, 1888, of the circuit court of Calhoun county, stated that Joe Myers and Mary Myers forcibly ravished Mary H. Jones, a female, against the peace and dignity of the state of Alabama." There were several grounds of demurrer interposed to the indictment. Among them the failure to allege that the said Mary H. Jones was a woman, and that she did not consent to the ravishment. The objection to the testimony appears in the opinion. The defendants were convicted, and sentenced to the penitentiary for life. They were respectively the step-father and mother of the girl, who was between 10 and 11 years old.

G C. Ellis and Kelly & Smith, for appellants.

T N. McClellan, Atty. Gen., for the State.

STONE C.J.

The words "female" and "woman," used as the former was in the indictment before us, mean the same thing and the indictment is sufficient. 1 Brick. Dig. p. 499, § 736; Sparrenberger v. State, 53 Ala. 481; Smith v. State, 63 Ala. 55; Block v. State, 66 Ala. 493; Parker v. State, 39 Ala. 365; Watson v. State, 55 Ala. 150.

The expert witness who had made a professional examination of the girl, the alleged subject of the rape, was asked to state the condition in which he found her and her clothing. This was 10 days after the offense was charged to have been committed. The witness gave testimony "as to the condition of the girl on the 27th day of January, 1888." He is not shown to have said anything about the clothing. Both the question and the answer were objected to, and exceptions reserved. As there is not shown to have been any testimony given in regard to her clothing, we need only say that such testimony would probably have been improper, given so long after the alleged offense. it cannot be presumed that the physician had knowledge of the clothes she had worn 10 days before. But the question did no harm unless it was answered; and, in the absence of all statement that it was answered, we must presume that it was not. 3 Brick. Dig. p. 444, § 577.

Testimony of what the physician discovered on an examination of the girl 10 days after the injury was not per se irrelevant. It is not shown what the testimony was. It may have tended to prove or confirm other testimony tending to prove penetration,-a material...