Rowland v. State, 1 Div. 487.

• Decision Date: 13 February 1945
• Docket Number: 1 Div. 487.
• Parties: ROWLAND v. STATE.
• Court: Alabama Court of Appeals

20 So.2d 881

31 Ala.App. 605

ROWLAND v. STATE.

1 Div. 487.

Alabama Court of Appeals

February 13, 1945

W C. Taylor, of Mobile, for appellant.

Wm N. McQueen, Acting Atty. Gen., and John O. Harris, Asst Atty. Gen., for the State.

BRICKEN Presiding Judge.

While the indictment in this case charged this appellant separately with the crime of rape, yet the record discloses that two other persons were likewise indicted separately charged with the same offense at the same time and place upon the same prosecutrix. The other two persons thus indicted were Frank alias Jimmy Bartlett, and Jack White. It also appears that the said Bartlett was first tried, on the day before the case at bar was tried.

The transcript of the testimony discloses when the trial of this case was entered upon, the Solicitor made an 'opening statement,' and in this connection stated (as shown by the transcript), 'This defendant is charged with rape with the same crime with which Frank, alias Jimmy Bartlett is charged.'

Defendant's counsel stated: 'I object to anything with reference to Jimmy Bartlett.'

The court stated: 'I will strike what he has just said, but will let him state what is a fact.' Exception was duly reserved to this utterance by the court. 'Solicitor further stated: 'Each and every one of them raped her.'' Defendant objected: 'I object to that statement and move to strike it.' The court stated: 'Overrule the objection and deny the motion.' Exception was duly reserved.

We see no escape from holding the above rulings of the court to be error. As will be noted, there was no statement by the Solicitor to the effect that the State expected to offer evidence tending to show that this defendant committed the act charged in the indictment, to the contrary by said rulings, the Solicitor was permitted to state as a fact that the defendant raped the alleged injured person, the very and only issue the jury were called upon to determine and decide. This the law does not permit.

The object and purpose of an 'opening statement' in advance of taking testimony, is to acquaint the jury with the nature of the issues presented. This may include an outline of the evidence proposed to be offered in support of said issues, but it has never been contemplated or allowed that an emphatic statement by a Solicitor, of his own knowledge could be made to the effect that the defendant is actually guilty of the crime charged in the indictment.

This case is of grave importance, and in order that it may be clearly understood we quote at length the material portion of the testimony adduced upon the trial. The State relied solely upon the testimony of the prosecutrix as to the facts, for a conviction. There is no dispute or conflict in the evidence as to principals having had sexual intercourse with each other at the time and place designated. The defendant strenuously insists and so testified the act was committed by and with the full consent of the woman in question. She, however, testified she did not consent to the act. This issue of fact was the only question for the jury's consideration and determination.

As to the salient facts the record discloses, among other things, that appellant was charged with rape on Eunice Lindsey on November 30, 1943, however, a warrant was not sworn to until December 8, 1943, and no complaint was immediately made by prosecutrix. On the night of November 30, 1943, which was Tuesday, defendant was at Whistler, Alabama, at the community house, which is located about 8 miles north of Mobile, Alabama, and the prosecutrix came there to the dance alone after she had left her place of employment at Woolworth's Department Store in Mobile, at 6:30 p.m. in the afternoon, but stopped at a show before she arrived at the dance hall, where the defendant was on said date. She was not acquainted with defendant and only knew one boy, by the name of 'Jimmie' (Jimmie Bartlett), who along with Jack White was, as stated, also indicted for rape of the prosecutrix on the same date and at the same place. Prosecutrix had been knowing Jimmie for some months, having met him previously at the dances she attended at this place.

About 11:30 on the night of November 30, 1943, just before the dance ended, she got into the car with this man, Jimmie, Jack White and this defendant, and they left the dance hall with Jack White driving the car. The defendant was on the front seat with White. The prosecutrix and Bartlett were on the back seat. White drove the car to a spot where he parked and Bartlett told the defendant and White to get out of the car which they did and walked back behind the car a way. Later they came back to the car and the prosecutrix said, as testified to by defendant, 'What the hell do you want?', and defendant stated, in effect, that he wanted to have relations with her also. Prosecutrix answered, 'All of you want it ?', and the defendant did have relations with prosecutrix on the front seat of the car with her consent. The defendant then got out of the car and Jack White got into the car, where the prosecutrix was and had remained since she left the dance hall. White later got out of the car, after he had had relations with prosecutrix, according to her statement. There was no fight or struggle, no noise or commotion, and she made no complaint or indication of any dissatisfaction whatever about what had happened, according to defendant's testimony. However, prosecutrix said she resisted. Then the three men got into the car with prosecutrix, and she had her arms around the defendant and Jimmie on the way back, while they three were riding in the front seat of the car (as to this there is no conflict in the testimony), Jack White in the rear seat alone. Jimmie Bartlett was then driving, and drove the prosecutrix within four doors of the home of her aunt...