Pitts v. State

• Decision Date: 30 June 1923
• Docket Number: 2 Div. 272.
• Citation: 99 So. 61,19 Ala.App. 564
• Parties: PITTS v. STATE.
• Court: Alabama Court of Appeals

99 So. 61

19 Ala.App. 564

PITTS v. STATE.

2 Div. 272.

Court of Appeals of Alabama

June 30, 1923

Rehearing Denied July 14, 1923.

Affirmed on Mandate of Supreme Court Feb. 5, 1924.

Appeal from Circuit Court, Bibb County; S. F. Hobbs, Judge.

Ed Pitts was convicted of rape, and appeals. Affirmed on mandate of Supreme Court in Ex parte State ex rel. Atty. Gen. (Pitts v. State), 99 South 65.

Foster J., dissenting.

Jerome T. Fuller, of Centreville, for appellant.

Harwell G. Davis, Atty. Gen., Lamar Field Asst. Atty. Gen., and Joseph H. James, of Greensboro, for the State.

SAMFORD J.

The state, on the examination of S. A. Lee, the father of the girl alleged to have been raped, was examined fully and at great length touching the girl's leaving home and his search for her at various places, lasting through several days, and finally of finding her. He then testified as to her physical condition and personal appearance at the time he found her. Witness was permitted to testify, in answer to questions propounded by solicitor, and over the objection of defendant: "That she was not then in a normal state;" that from the place they found her they "had to almost carry her to the car." In answer to a question as to whether she went willingly, he answered "She didn't seem to realize anything about it; she did not seem to know anything about it." He further testified that she was in good health before she left home. Under ordinary circumstances this testimony might have been admissible. Jacobs v. State, 146 Ala. 103, 42 So 70. In the Jacobs Case it was held that a witness was competent to testify as to the condition in which prosecutor was found shortly after the assault, though the witness was not an expert. In May v. State, 167 Ala. 36, 52 So. 602, it was held that at the time of the fatal difficulty deceased "looked like a drunken man"; in Burton v. State, 107 Ala. 108, 18 So. 284, that defendant "looked paler than usual"; in Houston's Case, 78 Ala. 576, 56 Am. Rep. 59, that he, "looked excited"; in Thornton v. State, 113 Ala. 43, 21 So. 356, 59 Am. St. Rep. 97, "that he looked frightened when he saw me"; and in Sharp v. State, 193 Ala. 22, 69 So. 122, "that defendant did not appear drunk." These are held not to be conclusions merely, but shorthand renditions of facts such as are recognized in Dobbins v. State, 15 Ala. App. 166, 72 So. 692.

But, the pertinent inquiry is, Was this testimony admissible as against this defendant? The testimony of the physician who examined the girl after she returned to her home, and who testified in behalf of the state, showed no lacerations of the parts, but an excited and irritated condition, due to excessive intercourse. The testimony developed from the state's witnesses, and principally from the prosecutrix, tended to prove that once before the present escapade the girl had left home, for what purpose is only inferential; that on Sunday afternoon before this alleged rape the prosecutrix had again voluntarily left her home with a young man Frazier, whom she claims had promised to marry her. According to the girl's testimony, she and Frazier met at a pavilion; that Frazier told her he had a license; that he further told her he had a car, but the car was not at the place he said and they left together walking to Hargrove, where Frazier left her in a field; by this time it was dark. He was gone a good while, during which time the defendant came to the field where she was; that defendant then lived at Hargrove, but had formerly lived at Smith Hill, her home, where she knew him; that she and defendant went down the path into the woods to a house; that she told defendant she wanted a drink of water; that defendant was carrying her to the house to get the water; that it was "just a little old house in the woods, and nobody lived in it." From the house they went back in the woods, and defendant "insulted me, and hit me, and had sexual intercourse with me. He knocked me down, and after he knocked me down he made me do as he said." She further testified that it was without her consent, and against her will. After he had finished, he took prosecutrix back, and left her on the side of the road, saying he was going for his gun, and to see if Frazier was there. Shortly thereafter defendant came back with Frazier, and she and they started in a buggy to Piper, where Frazier lived. The boy who was driving the buggy "got scared," and wouldn't go to Piper, and defendant suggested they go to Belle Ellen, to the house of a woman of bad repute, named Reach. At that time Dewey Pitts, a brother of defendant, came up, got into the buggy with prosecutrix and Frazier, and defendant left them. According to the testimony, the defendant saw prosecutrix no more during the following days of a most unusual experience. She made no complaint or outcry to Frazier, or Dewey Pitts, or to the Reach woman of any ill treatment on the part of defendant towards her, but got in the buggy and went on to the Reach woman with Dewey Pitts and Frazier, arriving there at 1 a. m., where she stayed until Tuesday night. During the time she was at the Reach woman's house she talked with her about her desire to marry Frazier, gave no indication of having been injured, and made no complaint as to having been mistreated. Tuesday night Dewey Pitts came for her, and told her that Frazier was waiting for her in a car on top of the hill; that they were going to Birmingham to get married. They did not find Frazier with the car, and prosecutrix and Dewey Pitts walked the railroad to Coleanor, leaving Belle Ellen about 8 p. m. On the way Dewey raped prosecutrix. They went on and met Frazier just as they reached Coleanor. With Frazier was Irby and a negro named Smithey. Prosecutrix made no complaint then of any outrage having been committed on her. Prosecutrix was then left with Dewey Pitts while the others went for a man named Joe Holder, who had a car; they all got in the car, and started for Birmingham. They did not go to Birmingham, but went to a place where they could get some whisky. Prosecutrix was then left with Holder while the others went for whisky, and while they were gone Holder raped her. When the others returned, among them being the man she claimed was going to marry her, she made no outcry or complaint. Upon the return, each of the party, except Irby, raped her. She then, according to her statement, was given some whisky, from the effects of which she went to sleep, and when she awakened she was at Holder's house with Frazier and Holder; later in the afternoon she left, going with the negro Smithey, and was accosted by an officer, who asked her name; she gave the name of Lena Wilson, and when he told her to come with him she ran, and in running came upon her father and another, who were looking for her, whereupon she fell down, and was carried home by her father. All of the foregoing experiences had happened to prosecutrix after she claimed to have been raped by defendant, without any effort on her part to escape or to make her condition known, or to make outcry or complaint, although she was, most of the time, in the midst of a thickly settled community, and much of the time she was left entirely alone.

The crime of rape, heinous in its conception, and damnable in its execution, is an assault upon the very source of virtue, and when committed on a chaste woman, inspires, in outraged womanhood, the desire to make immediate outcry for redress to those to whom she would naturally look for protection. In recognition of this, it has become the settled law of this state, in corroboration of the statement of the assaulted party's testimony that she made complaint of the assault while it was recent is relevant and admissible. 11 Mitchie's Dig. 447, par. 34(1). Recognizing also the character of the crime, that it is easy to make the charge, hard to prove it, and when proven harder to disprove, the contrary of the foregoing rule is recognized, to this extent at least. A failure of the assaulted party to make complaint recently after the occurrence, opportunity offering itself, will cast a suspicion on the bona fides of the charge. 1 Wharton Crim. Law, par. 724, note 7.

And so, in considering all evidence in a prosecution for rape, where the minds of the average jury can be so easily influenced at the harrowing details of the violation of a helpless woman, it is necessary to be cautious in the admission of testimony lest a verdict returned be based on something other than legal testimony. By reason of the nature of the charge, usually the evidence relied on for conviction must depend almost entirely upon the testimony of the prosecutrix and corroboration thereof.

The defense can only rely upon his denial and the impeachment of the woman's statement. Therefore any testimony admitted, which tends to enhance the horrible details of the crime, and to arouse the sympathy of the jury for the woman, which does not connect or tend to connect the defendant with the crime or is so remote as to have no legal probative force, could not fail to injure his defense before the jury.

It is not the law, says Mr. Greenleaf in his work on Evidence, vol. 1, p. 36, which furnishes the test of relevancy, but logic.

"Probative value, or capability of supporting an inference, is a matter of reasoning, and must be the same in a courtroom as in a laboratory; it is only the subject-matter that differs. Whatever rules of relevancy are found in our precedents are mere application of logic by the court."

If therefore it appear that a chaste female is violated on Sunday night, and without intervening cause, an examination on the following Friday discovers the parts to be lacerated and inflamed, a proper deduction could be drawn that the one was the result of the other....