Thorne v. State

• Decision Date: 09 June 1925
• Docket Number: 6 Div. 614
• Citation: 105 So. 709,21 Ala.App. 57
• Parties: THORNE v. STATE.
• Court: Alabama Court of Appeals

105 So. 709

21 Ala.App. 57

THORNE v. STATE.

6 Div. 614

Court of Appeals of Alabama

June 9, 1925

Rehearing Denied June 30, 1025

Appeal from Circuit Court, Walker County; R.L. Blanton, Judge.

Bricken P.J., dissenting.

Jack Thorne was convicted of seduction, and he appeals. Affirmed.

Certiorari denied by Supreme Court in Ex parte Thorne, 105 So. 711.

Bricken P.J., dissenting.

R.M. Montgomery, of Birmingham, and Gray &amp Powell, of Jasper, for appellant.

Harwell G. Davis, Atty. Gen., and Curtis, Pennington & Pou, of Jasper, for the State.

SAMFORD J.

There are numerous objections and exceptions to questions and answers appearing in the examination of prosecutrix relative to her pregnancy as a result of the act of intercourse which took place as a result of the alleged promise of marriage, and also as to the birth of a child and the date of its birth, and the paternity of such child. That a child was born as a result of the cohabitation was relevant. Cunningham v. State, 73 Ala. 51; Whatley v. State, 19 Ala.App. 282, 97 So. 121. The date of birth, if within the period of normal gestation, is admissible. Whatley v. State, 144 Ala. 68, 39 So. 1014. And the prosecutrix may testify that the defendant is the father of the child so begotten. Watts v. State, 8 Ala.App. 264, 63 So. 18; Davis v. State, 20 Ala.App. 463, 103 So. 73. All of this in corroboration of prosecutrix and in fixing the date of the crime, and in proof of the corpus delicti. None of this evidence, however, would have been relevant had it related to a time subsequent to the time fixed by the prosecutrix as the date of the seduction. Davis v. State, 18 Ala.App. 482, 93 So. 269; Owens v. State, 19 Ala.App. 621, 99 So. 774. After the court had admitted evidence as to the foregoing, the state, over the timely objections and exceptions of the defendant, was permitted to make profert of the baby. In passing upon this question we are met by a dictum of this court in Tarver's Case, 17 Ala.App. 424, 85 So. 855, and a statement in the opinion in the Whatley Case, 19 Ala.App. 282, 97 So. 121, that--

"There was no error in the rulings of the court in allowing the witness Mrs. Hodnett, who had a baby in her arms, to testify that the baby was the child of her daughter, and that it was born December 3, 1919."

In neither of these cases was the question of profert raised, each being as to the fact of birth and its date. The decision in the Tarver Case was based upon the case of Kelly v. State, being a bastardy proceeding, and that of the Whatley Case being based upon Whatley's Case, 144 Ala. 68, 39 So. 1014, where the question was one alone of birth. For the first time, so far as we can find, is the question of profert of a baby in a seduction case presented squarely to the court. It is to be conceded that, even in bastardy cases, the authorities are in conflict, notably, State v. Danforth, 48 Iowa, 43, 30 Am.Rep. 387; Risk v. State, 19 Ind. 152; Keniston v. Rowe, 16 Me. 38; Barnes v. State, 37 Tex.Cr.R. 320, 39 S.W. 684. The foregoing are proceedings in bastardy. In this state and in a bastardy proceeding our court has held that it was competent to make profert of the baby, after proper identification, to show resemblance to the reputed father. Kelly v. State, 133 Ala. 195, 32 So. 56, 91 Am.St.Rep. 25; White v. State, 74 Ala. 31; State v. Arnold, 35 N.C. (13 Ired.) 184; State v. Woodruff, 67 N.C. 89; Gentry v. McMinnis, 3 Dana (Ky.) 385. The uncertainty of this character of proof is everywhere conceded, and but for the decisions of our own court on the subject we might be inclined to hold otherwise. However unsatisfactory it may be, where as in this case the question of the paternity of the child becomes relevant for any purpose, the jury should have the benefit of a personal inspection of the child that through the sense of sight they may draw their own conclusions, as to a resemblance between the defendant and the baby. If there had been no denial of intercourse at the time as testified to by prosecutrix, a different rule might apply, but in this case the defendant denied the cohabitation, so that, if the child born as a result of intercourse at about the time testified to by the girl was of such resemblance to defendant as to impress the jury that the child was the defendant's, such evidence would corroborate the testimony of prosecutrix and tend to an impeachment of defendant's statement that he did not have intercourse with prosecutrix. So that, if the admission of this testimony was technically inadmissible at the time of its admission, it became legal after all the facts had been brought out. Profert of the baby was properly allowed.

That the prosecutrix was about 18 years of age, that she was usually alone during the mornings of each day, that her father's place of business was in Cordova, that her father did not stay at home during the day, that her brother was away from home during the daytime when defendant was visiting her at the house, and other similar testimony to which objection was made, was relevant as tending to show the condition, surroundings, and opportunity of the parties for carrying on a courtship and such intercourse as they desired to indulge in, free from interference on the part of the...