Roberts v. State

• Decision Date: 08 February 1899
• Citation: 25 So. 238,122 Ala. 47
• Parties: ROBERTS v. STATE.
• Court: Alabama Supreme Court

25 So. 238

122 Ala. 47

ROBERTS v. STATE.

Supreme Court of Alabama

February 8, 1899

Appeal from circuit court, Pike county; J. W. Foster, Judge.

Marion Roberts was convicted of rape, and he appeals. Reversed.

On the trial of the case, after the witness Annie Hattoway had testified to the facts attending the commission of the offense, she further testified that the place where the defendant threw her down and ravished her was in a pasture near her father's house; that it was a smooth place in some bushes, and was sandy, but the sand was not perfectly white; that it was about 45 feet from a large pine tree that had been killed by lightning, about 80 yards from a cornfield in "the bottom adjoining the pasture"; that the bushes were thick there, and it was in the southeast corner of the pasture, about 35 yards from a branch, and from 30 to 50 yards from an oatfield. The said Annie Hattoway further testified that, at the time she was raped by the defendant she had on an undergarment and a dress, and that in the afternoon of the day the offense was committed she noticed that her undergarment had blood on it, both in front and behind. When asked about what time of the day she was assaulted by the defendant, she testified that it was between 7 and 8 o'clock in the morning. During her cross-examination she stated that she testified on the preliminary trial and on the habeas corpus proceedings that it was between 8 and 9 o'clock in the morning, but that she was now sure it was between 7 and 8 o'clock; that she had changed the designation of the time because after the other trials she was informed that the time was an important matter in the case, and after thinking it over she was sure it was between 7 and 8 o'clock. Upon the cross-examination of one Ben Blackman, a witness for the defendant, he testified that, about three or four weeks after the day the defendant was charged with having raped Annie Hattoway, he was passing through Mr. Hattoway's pasture and made an examination to see if he could find the place of the alleged rape; that in one place in the pasture he saw tracks of a man with shoes, and of bare feet, like the tracks of a girl; that thereupon he followed these tracks in some bushes, where he saw signs as if there had been a struggle or scuffle, but that he did not see near there a large pine tree, killed by lightning. On the redirect examination of this witness by the defendant, he was asked, "How far is this place you refer to from the cornfield?" He answered that it was about 30 steps; and, in answer to a question as to how far it was from the branch, he said it was about 15 yards. The defendant then moved the court to exclude the testimony of this witness as to any signs of a struggle or a scuffle at the place referred to by him in the pasture, on the ground that the place referred to by the witness is not sufficiently identified as being the place where the alleged rape was committed, as described by the witness Annie Hattoway. The court overruled this motion, and the defendant duly excepted. During the re-examination of the witness Annie Hattoway, she testified that, some time before the defendant raped her, he came to the cow pen one day while she was milking, and asked her to kiss him; that she refused, and the defendant told her that, if she told her father, he (the defendant) would kill her and her father, both; and that she did not tell her father about the defendant asking her to kiss him until the Sunday morning after the commission of the rape, which was on Thursday. In the course of his argument to the jury, one of the defendant's attorneys said "Annie Hattoway says her undergarment worn that 5th day of May [the day of the alleged rape] had blood on it, behind and in front. Where are those clothes, gentlemen of the jury? Why was not that garment here as evidence in this case?" The solicitor objected to these remarks by the defendant's counsel, and moved the court to exclude them from the jury, on the ground that they were illegal. The court sustained the objection, granted the motion, and excluded said remarks from the jury. To this action of the court the defendant duly excepted. In this closing argument to the jury, the solicitor used the following language "The circumstances and testimony in the case show that no one knew better than Roberts that she, Annie Hattoway, had not told her father, because they had been friends since Roberts asked her to kiss him, on up to the time of the alleged rape. Defendant knew he had this girl, Annie Hattoway, in his power. He had asked her two months before this, at the cow pen, to kiss him; and he told her there, if she told her father, he would kill her. She did not tell her father about defendant's talk at the cow pen. (And no one knew better than Marion Roberts, the defendant, that Annie Hattoway had not told her father about this kissing talk at the cow pen.)" The defendant objected to that part of the solicitor's argument in parentheses, and moved the court to exclude it from the jury, on the ground that the same was illegal, since there was no evidence introduced to show whether the defendant knew, or not, whether Annie Hattoway had told her father about the incident referred to. The court overruled the objection and motion, and this ruling the defendant duly excepted. The defendant requested the court to give to the jury the following...