Parker v. State

• Decision Date: 30 January 1934
• Docket Number: 4 Div. 42.
• Parties: PARKER v. STATE.
• Court: Alabama Court of Appeals

152 So. 610

26 Ala.App. 61

PARKER v. STATE.

4 Div. 42.

Court of Appeals of Alabama

January 30, 1934

Appeal from Circuit Court, Dale County; J. S. Williams, Judge.

Pleasant L. Parker, Jr., was convicted of seduction, and he appeals.

Reversed and remanded.

Sollie & Sollie, of Ozark, for appellant.

Thos E. Knight, Jr., Atty. Gen., and Jas. L. Screws, Asst. Atty Gen., for the State.

BRICKEN, Presiding Judge.

This prosecution, by indictment, was for a violation of section 5490 of the Code of Alabama 1923, wherein it is made an offense (felony) for any man, by means of temptation deception, arts, flattery, or promise of marriage to seduce an unmarried woman in this state. This section of the Code however, provides: "But no indictment or conviction shall be had * * * on the uncorroborated testimony of the woman upon whom the seduction is charged"; and also, that "no conviction shall be had if on the trial it is proved that such woman was, at the time of alleged offense, unchaste."

From a judgment of conviction this appeal was taken.

We cannot sustain appellant's insistence as to error in the court allowing the father of the alleged injured party to remain in the courtroom and to occupy a seat near the solicitor during her examination as a witness. We must indulge the presumption, in the absence of affirmative and conclusive proof to the contrary, that there was no abuse of the trial court's discretion in this connection. The same is true relative to the court's action in allowing the solicitor to propound leading questions to the principal state witness. It was evident to the court that she was an unwilling witness, hence the court was well within the range of his discretion. Questions of this character are purely within the discretion of the trial court and, as stated unless it clearly appears that an abuse of this discretion was indulged, the court's action will be sustained.

Lois Stephens, the woman in question, testified that she was unmarried. That at the time of the trial on February 28, 1933, she had known defendant about two years. That she first met him after Christmas in the year 1930, and that some weeks thereafter she had sexual intercourse with him for the first time. The testimony tends to show that the act of intercourse, here complained of, occurred either upon the first or second time the principals, that is to say, this appellant and the alleged injured party, went together.

In this case the state insisted that there was a promise of marriage and as a result thereof the alleged seduction was accomplished. This was the question mainly controverted. In order to sustain this insistence, the state undertook to prove, by the alleged injured party, facts sufficient to make out the offense. To justify defendant's conviction on this ground, it was incumbent upon the state to offer evidence sufficient to satisfy the jury beyond a reasonable doubt, not only that there was a marriage engagement between the defendant and the prosecuting witness, and that in consequence of such engagement she surrendered her person to him sexually. In the case of Cooper v. State, 90 Ala. 641, 8 So. 821, Chief Justice Stone, for the court, said: "Promise of marriage, and subsequent illicit cohabitation, are not necessarily sufficient to make out the offense. They must stand to each other as cause and effect,-that is, the one must be the exciting or producing cause of the other,-or this statutory crime is not committed."

On the attempted proof to sustain this material allegation of a promise of marriage, the testimony of the prosecuting witness was vague and uncertain. Notwithstanding repeated efforts of the solicitor to adduce this necessary proof, at no time did she testify directly to the effect that defendant had promised to marry her. In one instance she testified in response to the solicitor's question, to wit: "Well during the time he went with you before he had anything to do with you did he make any promises to you?" At first the witness did not answer; the solicitor again inquired: "Did he, Miss Stephens?" She answered: "Well, he didn't make any definite promise." Later on, this witness did testify to such statements: "Well, we talked of marrying." In response to the question: "What did he say about marrying?" she replied "He said we...