Stewart v. State, 4 Div. 131

• Court: Alabama Court of Appeals
• Citation: 161 So. 112,26 Ala.App. 392
• Docket Number: 4 Div. 131
• Parties: STEWART v. STATE.
• Decision Date: 16 April 1935

161 So. 112

26 Ala.App. 392

STEWART v. STATE.

4 Div. 131

Court of Appeals of Alabama

April 16, 1935

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

Mack Stewart was convicted of rape, and he appeals.

Reversed and remanded.

Guy W Winn, of Clayton, for appellant.

A.A Carmichael, Atty. Gen., for the State.

BRICKEN Presiding Judge.

The appellant, defendant below, was tried and convicted upon an indictment which reads as follows (omitting the formal parts): "The grand jury of said county charge that before the finding of this indictment, that Mack Stewart forcibly ravished Susie Emma Turner, a woman, against the peace and dignity of the State of Alabama."

The alleged injured party, Susie Emma Turner, a negro girl, was at the time of the alleged commission of the offense fourteen years of age, as shown by the undisputed testimony. Her testimony tended to make out the offense as charged, and, in addition, she testified that she made complaint to her mother in a short while after she said the offense had been committed upon her.

The state introduced the girl's father, Leander Turner, as a witness, and in this connection the record shows the following examination was had:

"My name is Leander Turner and I'm the father of Susie Emma. I remember the day when its alleged that Mack Stewart raped her. I was not at home when Susie Emma went to get the cow; I saw her when I came, it was just a little after sun-down when I got there and she was in the house, and I was on the mule, I got to the well after some water and my wife came out there crying and I said, 'What's the matter?' Susie Emma was in the house.

"At this point the solicitor propounded the following question to the witness:

"Q. Well did she make any statement to you about what Mack Stewart had done to her?

"The defendant objected to the above question and for grounds of said objection assigned the following:

"1. Said question is leading and suggestive.

"2. Said question calls for testimony which is illegal, inadmissible, incompetent and irrelevant.

"The court overruled said objection and permitted the witness to answer said question, and to such ruling of the court the defendant duly reserved an exception.

"The witness answered said question as follows:

"A. Yes, sir.

"The defendant objected to the above answer and moved the court to exclude it, together with the question calling for same, and for grounds of said motion assigned the same grounds that were assigned in the objection to said question; the court overruled said objection and motion, whereupon the defendant duly reserved an exception to the ruling of the court.

"The solicitor thereupon propounded the following question to the witness:

"Q. Tell the jury whether or not she said that Mack Stewart had raped her.

"The defendant objected to the above question and for grounds of said objection assigned the same grounds last hereinabove set out, and the court overruled said objection; whereupon the defendant duly reserved an exception to the ruling of the court.

"The witness answered said question, as follows:

"A. Yes, sir.

"The defendant objected to the above answer and moved the court to exclude it, together with the question calling for same, and for grounds of said motion assigned the same grounds that were assigned in the objection to said question; the court overruled said objection and motion, whereupon the defendant duly reserved an exception to the ruling of the court."

It will be noted from the foregoing that it is difficult to tell whether the complaint, above quoted, was made to said witness by the girl in question or by her mother. The girl, herself, testified: "My father's name is Leander Turner; I saw him; I didn't tell him, but Mama told him." In either event, however, the court committed reversible error in allowing the solicitor to propound the question to Leander Turner, "Q. Tell the jury whether or not she said that Mack Stewart had raped her"; and also in allowing, over the objection and exception of defendant, the witness to answer, "Yes, sir."

In cases of this character the rule is well settled. In prosecution for rape the state may show in corroboration of the testimony of the assaulted party that she, shortly after the outrage upon her, made complaint of such occurrence to her father or mother. But this rule also provides that such testimony must be confined to the bare fact of complaint and details of the occurrence or the identity of the person accused are not admissible. Bray v. State, 131 Ala. 46, 31 So. 107, and cases cited. See also, Oakley v. State, 135 Ala. 15, 16, 33 So....