Story v. State

• Decision Date: 30 May 1912
• Citation: 178 Ala. 98,59 So. 480
• Parties: STORY v. STATE.
• Court: Alabama Supreme Court

59 So. 480

178 Ala. 98

STORY v. STATE.

Supreme Court of Alabama

May 30, 1912

Rehearing Denied June 29, 1912.

Appeal from Tuscaloosa County Court; Henry B. Foster, Judge.

Clarence Story was convicted of crime, and he appeals. Reversed and remanded.

McKinley McQueen, Hawkins & Snow, of Eutaw, for appellant.

R. C Brickell, Atty. Gen., and W. L. Martin, Asst. Atty. Gen., for the State.

McCLELLAN J.

The indictment contained two counts; the first charging rape of Beatrice McClure, and the second charging the violation of the following penal statute (Code, § 7698): "Carnal knowledge of women by administering drug, etc.--Any person who has carnal knowledge of any woman above fourteen years of age, without her consent, by administering to her any drug or other substance which produces such stupor, imbecility of mind, or weakness of body, as to prevent effectual resistance, must, on conviction, be punished at the discretion of the jury, by death or by imprisonment in the penitentiary for not less than ten years." The conviction was under the second count only.

The copy of the indictment served upon the defendant differed from the original indictment in this: "Has" was substituted for "had," preceding the word "carnal," and "of" was substituted for "or" between the words "drug" and "substance." The differences were not material. It was not possible for any one to be misled in respect of the charge intended to be, and that was, laid in the second count. No injury or prejudice attended the merely clerical errors shown by the substitutions stated. Code, § 6264; Rigsby v. State, 152 Ala. 9, 44 So. 608.

The motion to quash the venire on this account was properly overruled.

The demurrer to the indictment because the copy served was different from the original was, obviously, wholly inapt. If the variance, between the original indictment and copy, had been material, the only effect would have been to continue the trial till the requisite service of a correct copy could have been made; the sufficiency of the copy and service of the venire proper being, as appears unquestionable.

In prosecutions for rape, and in kindred proceedings, where nonconsent is an element of the offense, in which the chastity of a woman may be brought into question, the character of the woman for chastity may be impeached; but this is usually done by evidence of her reputation in that respect, and not by proof of particular acts of unchastity. Boddie v. State, 52 Ala. 395; McQuirk v. State, 84 Ala. 435, 4 So. 775, 5 Am. St. Rep. 381; Griffin v. State, 155 Ala. 88, 46 So. 481. In other jurisdictions the rule is different; the courts holding that the substantive fact of unchastity may be shown, not only by general reputation therefor, but by evidence of particular acts. See State v. Patterson, 88 Mo. 88, 57 Am. Rep. 374; 10 Ency. of Evi. pp. 602-605; People v. Abbott, 19 Wend. (N. Y.) 192; State v. Jefferson, 28 N.C. 305. The view to which this court long ago gave its approval, as stated, found its chief support in 3 Green. on Evi. § 214, where that learned author said: " The character of the prosecutrix for chastity may also be impeached; but this must be done by general evidence of her reputation in that respect, and not by evidence of particular instances of unchastity. Nor can she be interrogated as to a criminal connection with any other person, except as to her previous intercourse with the prisoner himself; nor is such evidence of other instances admissible."

We are not disposed to enter, at this late day, upon a reinvestigation of the soundness of the general rule thus accepted by this court. The theory of the rule is that the essential (to the offense) fact of nonconsent of the woman to intercourse with the defendant may be negatived by evidence of general reputation for unchastity--a condition that argues the consent of the woman to meretricious intercourse with the defendant.

The woman here confessed that she had, for some time, pursued the vocation of a prostitute. She is a woman of the Caucasian race. The defendant is a negro. The defendant sought to show that the woman bore the reputation of having practiced her lewdness with negroes; and, also, that on one occasion in a neighboring state she was caught in bed with a negro other than the defendant.

The court disallowed both characters of this evidence; evidently, in consequence of the application of the rule which we have stated as long prevailing in this state. Bound as the trial courts are by the pronouncements of this court in respect of matters before them, it should be in justice said that in this instance the trial court may be conceded to have had in the Boddie and McQuirk Cases, supra, support, in declaration of general principle and in the illustrations thereof afforded by decisions of this court, for the rulings mentioned. With respect to the stated effort to show particular conduct of the woman in a neighboring state, there can be, under the prevailing rule, no doubt of the correctness of the court's action. With respect to the matter of her reputation for prostitution among negroes, we have, after full consideration, reached a different conclusion. We think the proffered testimony to that effect should have been received.

As affecting the credibility of a witness, evidence in chief may be taken of the general character of the witness but, while the notorious want of chastity in a female would of course blight her reputation and destroy confidence in her virtue in any respect, yet her general reputation for unchastity cannot be inquired into in order to reflect upon her credibility as a witness; for that would result in the original investigation of the cause of her repute, which is not permissible. Holland v. Barnes, 53 Ala. 83, 25 Am. Rep. 595; Birmingham Ry. Co. v. Hall, 90 Ala. 8, 11, 8 So. 142, 24 Am. St. Rep. 748; McInerny v. Irvin, 90 Ala. 275, 7 So. 841; Swint v. State, 154 Ala. 46, 45 So. 901. So, the admissibility of the testimony now under consideration is to be referred to its...