Tucker v. State

• Decision Date: 21 April 1910
• Citation: 52 So. 464,167 Ala. 1
• Parties: TUCKER v. STATE.
• Court: Alabama Supreme Court

52 So. 464

167 Ala. 1

TUCKER v. STATE.

Supreme Court of Alabama

April 21, 1910

Appeal from Circuit Court, Shelby County; A. H. Alston, Judge.

S Berry Tucker was convicted of seduction and appeals. Reversed and remanded.

Samuel Henderson, for appellant.

Alexander M. Garber, Atty. Gen., for the State.

DOWDELL C.J.

The appellant was indicted and tried for the seduction of one Pauline Gibson, an unmarried woman. On the trial the said Pauline was examined as a witness on behalf of the state. She denied yielding her consent to sexual intercourse with the defendant, and testified that the intercourse was accomplished by force and against her will. The court refused, on the objection of the solicitor, to permit the defendant to ask this witness "if she complained to any one of the defendant's conduct toward her."

In prosecution for rape, the fact that immediate complaint by the person assaulted was or was not made is admissible evidence. Mayfield's Dig. vol. 1, p. 760, § 44 et seq. This rule, however, is not applicable in prosecutions for seduction, where consent to the intercourse constitutes an element of the crime.

In criticising the evidence of the witness Foust, counsel for the defendant did not exceed the bounds of legitimate argument in addressing the jury. Cross v. State, 68 Ala. 476. The court, therefore, in its oral charge, committed error in instructing the jury to disregard that part of counsel's argument. It is a constitutional right for one charged with a criminal offense to be heard by counsel.

It was an invasion of the province of the jury for the court in its oral charge to instruct them that in weighing the testimony of the defendant they "must" consider his interest in the case. It is proper to instruct the jury that they "may" do so, but not that they "must" do so. However, the record fails to show that any exception was reserved to this part of the oral charge, though insisted on in argument here by counsel for appellant. This error without exception reserved, is unavailing on appeal.

There was some evidence of arts and flattery employed by the defendant to seduce, and also evidence from which the jury might have inferred the willingness and consent of the prosecutrix, and of her yielding to the flattery, etc notwithstanding her denial of consent, and consequently the general charge requested by the defendant was properly refused.

For the errors indicated, the...