Tarver v. State

• Decision Date: 20 April 1920
• Docket Number: 8 Div. 743
• Citation: 85 So. 855,17 Ala.App. 424
• Parties: TARVER v. STATE.
• Court: Alabama Court of Appeals

85 So. 855

17 Ala.App. 424

TARVER v. STATE.

8 Div. 743

Court of Appeals of Alabama

April 20, 1920

Appeal from Circuit Court, Morgan County; F. Loyd Tate, Judge.

Raymond Tarver was convicted of seduction, and he appeals. Reversed and remanded.

Sample & Kilpatrick, of Hartsells, for appellant.

J.Q Smith, Atty. Gen., and Harwell G. Davis, Asst. Atty. Gen for the State.

MERRITT J.

The defendant was convicted under an indictment on a charge of seduction, and sentenced to the penitentiary for a term of not less than three nor more than five years. Upon the solicitors resting the case of the state, and before the defendant introduced any testimony, the defendant moved to exclude all of the evidence introduced by the state because it failed to establish a prima facie case. There was no error committed by the trial court in overruling this motion. McCray v. Sharpe, 188 Ala. 375, 66 So. 441; Scales v. Central Iron & Coal Co., 173 Ala. 639, 55 So. 821; Mobile Light & Ry. Co. v. Portiss, 195 Ala 320, 70 So. 136.

The prosecutrix testified that the sexual intercourse with the defendant took place the first Sunday in March, and that the child was born the following October 25th. It was competent for the state to introduce the testimony of the doctor to the effect that it was not unusual for a girl of the age of the prosecutrix to give birth within such a period. Such testimony tended to corroborate the statement as to the time of the sexual intercourse. Whatley v. State, 144 Ala. 74, 39 So. 1014.

It is insisted that the court committed error in refusing to charge the jury that the defendant could not be convicted, because there was a lack of evidence to corroborate the testimony of the prosecutrix as required by Code 1907, § 7776. It is well settled by a long line of decisions in this state that the corroborative evidence is sufficient to meet the requirements of the statute, "if it extends to a material fact, and satisfies the jury that the woman is worthy of credit." Suther v. State, 118 Ala. 88, 24 So. 43; Holland v. State, 11 Ala.App. 134, 66 So. 126; Smith v. State, 13 Ala.App. 399, 69 So. 402; Id. 193 Ala. 680, 69 So. 1020.

One of the material ingredients of the crime is that sexual intercourse had been had with the prosecutrix. There was evidence that she had given birth to a child and profert of the child was made to the jury. This was corroborative evidence of cohabitation. The child and the defendant were both before the jury, and this court cannot say that the jury did not find the resemblance between the two so strong that they were convinced beyond all reasonable doubt that the defendant was the father of the child. Kelly v. State, 133, Ala. 195, 32 So. 56, 91 Am.St.Rep. 25.

There was evidence, other than that of the prosecutrix, which tended to show that the defendant was paying social attentions to the prosecutrix, virtually to the exclusion of all other men, during the time of the alleged seduction. The defendant admitted that upon returning home from the army he heard that the prosecutrix had given birth to a child; that he remained at home only two days, and left, going to the state of Florida, where he was at the time he was arrested. From this the jury might have inferred flight, which tended to prove an element of the offense. Wilson v. State, 73 Ala. 527; Holland v. State, supra.

The trial court committed no reversible error in stating that the state contended that there were not only temptations, arts, flatteries, and deceits, but a promise to marry, used by the defendant in seducing the prosecutrix. It is insisted that there was no testimony of the use of temptations. arts, flatteries, and deceits, and that therefore the court's charge should have been limited to the promise to marry. The testimony of the prosecutrix, which the jury evidently believed, was to the following effect:

"We went driving in an automobile on the highway down near Flint. He said he loved me, and would marry me, and take care of me. He hugged me, and kissed me, and that was the time I submitted to him. I submitted, because I loved him, and he made me such faithful promises I could not help but submit to him."

This testimony was before the jury without objection. This brief statement paints a word picture which depicts in vivid colors every criminal element enumerated in the statute. There was the "art," the skillful arrangement of a situation suitable to the attainment of his desires; there was the flattery, the ardent caresses and faithful professions of love; there was the temptation, the enticement to turn from the path of rectitude; and it is not to be disputed that, if the surrender of her virtue and the commission of this social and moral crime was induced by such acts as stated by the prosecutrix, there was also present the element of deceit. To prevent by such wiles the defiling of chaste womanhood, the greatest blow that can be leveled at our social civilization, this statute against seduction was aimed. Wilson v. State, supra; Cooper v. State, 90 Ala. 641, 8 So. 821; Suther v. State, supra. That the defendant accomplished the satisfaction of his passion by combining the use of all the methods denounced by the statute is not the less, but the more, the reason he should suffer the penalty of the law, purposed to protect the purity of womanhood.

The trial court correctly refused to permit the introduction of testimony tending to show that the prosecutrix had been guilty...