Weems v. State

Decision Date24 March 1932
Docket Number8 Div. 321.
Citation141 So. 215,224 Ala. 524
CourtAlabama Supreme Court

Rehearing Denied April 9, 1932.

Appeal from Circuit Court, Jackson County; A. E. Hawkins, Judge.

Charlie Weems and Clarence Norris, alias Morris, were convicted of rape, and they appeal.


ANDERSON C.J., dissenting.

George W. Chamlee, Sr., and George W. Chamlee, Jr., both of Chattanooga, Tenn., and Joseph R. Brodsky, Irving Schwab Allan Taub, Elias M. Schwartzbart, Joseph Tauber and Sidney Schreiber, all of New York City, for appellants.

Thos E. Knight, Jr., Atty. Gen., and Thos. Seay Lawson, Asst. Atty. Gen., for the State.


The record in this case, No. 2402 in the circuit court, shows that on the 31st day of March, 1931, the defendants, appellants here, appeared in person and by their counsel, and were duly arraigned, and entered a plea of not guilty; that the case was thereupon set for trial along with case No. 2404, State of Alabama v. Haywood Patterson, who was also jointly indicted with the appellants in this case; was set to be tried on Monday, April 6th; that the court ordered that the venire for the trial should consist of one hundred jurors, including the regular jurors drawn for the week in which this case was set for trial, and twenty-five jurors specially drawn from the jury box in open court in the presence of the defendants and their counsel; that all of said jurors be summoned by the sheriff, and a list thereof be made, and, together with a copy of the indictment, be served on each of the defendants. The record further shows that this order was complied with, and that such list, together with a copy of the indictment, was served on each of the defendants. This was in strict compliance with the statutes. Code 1923, §§ 8644, 8649. See Patterson v. State (Ala. Sup.) 141 So. 195, and Powell et al. v. State (Ala. Sup.) 141 So. 201, as to venire and setting of the causes for trial. Whitehead v. State, 206 Ala. 288, 90 So. 351.

The motion for change of venue made in this case, and the evidence in support thereof, are identical with the motion and evidence made in the case of State v. Haywood Patterson, No. 2404, which has been fully considered in Patterson's appeal, argued and submitted along with this appeal, and what was said in that case will not be repeated here, as we are in accord with Justices Brown's and Knight's opinions of the facts on this motion and under the authorities cited and adverted to in the opinions in Patterson v. State and Powell et al. v. State, supra. The motion was denied without error. Patterson v. State (Ala. Sup.) 141 So. 195; Malloy v. State, 209 Ala. 219, 96 So. 57; Riley v. State, 209 Ala. 505, 96 So. 599; Godau v. State, 179 Ala. 27, 60 So. 908.

The indictment was in the form prescribed by the statute (Code 1923, § 4556, form 88), and under the repeated decisions of this court was sufficient to advise the appellants of the nature and cause of the accusation, and appellants had a copy thereof. This met the requirements of the Constitution. Malloy v. State, supra; Schwartz v. State, 37 Ala. 460; Doss v. State, 220 Ala. 30, 32, 123 So. 231, 68 A. L. R. 712; Jinright v. State, 220 Ala. 268, 125 So. 606; Myers et al. v. State, 84 Ala. 11, 4 So. 291; McQuirk v. State, 84 Ala. 435, 4 So. 775, 5 Am. St. Rep. 381. The many authorities on this point are collected in 69 A. L. R. 1392, note.

The evidence of the state's witness Victoria Price, to state its substance, goes to show that on the 25th day of March, 1931, she was riding on a freight train through Jackson county with her girl companion, Ruby Bates; that they were riding in a "gondola car" loaded with chert or gravel; that just after the train passed Stevenson in Jackson county, Ala., the appellants, Charlie Weems and Clarence Norris, with the aid of other negroes, forcibly stripped off her outer garment, a pair of overalls, tore off her under garments, and forcibly ravished her; that there were twelve in the party of negroes who came upon the car and forced six of seven white boys to leave the train while it was in fast motion, by assaulting said white boys; that, after said white boys were forced to leave the train, some of the negroes raped her companion, Ruby Bates, and the others raped her-six in number-and that some of them held the girls while the others accomplished their purpose; that Weems held a knife against the throat of witness, while some of the others, including Norris, forcibly had sexual intercourse with her.

On cross-examination, after this witness testified that she was married, and had not been divorced, she was asked by defendants' counsel: "Did you leave him (her husband) at Huntsville?" The court sustained the solicitor's objection to the question, and defendants excepted. This question called for immaterial testimony, and the objection was properly sustained. She was also asked by defendants' counsel: "How long had you known your husband before you married him?" And due objection was sustained. This likewise called for immaterial testimony, and the objection was properly sustained. The same is true as to the question, "Were you ever in jail before?"

Dr. Bridges, whose qualification as a medical witness was conceded by the defendants' counsel, testified that he, with Dr. Lynch, the county health officer, made a physical examination of the witnesses Victoria Price and Ruby Bates on the afternoon of the alleged rape, and found bruises and scratches on their persons, but no lacerations or tears of the sexual organs, and testified to the presence in the vaginas of the two witnesses of the male germ, going to show penetration; and expressed his judgment, as a physician, that "six men, one right after the other, could have had intercourse with her (Victoria Price) without lacerations. That is possible." This opinion evidence was competent.

On cross-examination of this witness, the defendants' counsel asked him: "Both of these girls admitted to you they had had sexual intercourse previous to this, didn't they?" Due objection was made to this question, which was sustained. There was no evidence showing or tending to show that the defendants had sexual intercourse by and with the consent of the state's witnesses. The evidence sought was not material. Patterson v. State, 141 So. 195; Powell et al. v. State, 141 So. 201; Griffin v. State, 155 Ala. 88, 46 So. 481; Rice v. State of Florida, 35 Fla. 236, 17 So. 286, 48 Am. St. Rep. 245; Story v. State, 178 Ala. 98, 59 So. 480. See, also, Bailey v. Com., 82 Va. 107, 3 Am. St. Rep. 87; 22 R. C. L. p. 1208, § 42; 52 C.J. 1079, § 109.

The same is true as to the following questions to this witness: "Both of them told you they had had sexual intercourse, one told you she had been married and the other told you she had been-" "*** From your examination could you tell whether or not they were subject to intercourse? Were they virgins? ***" "That you find anything in the vagina that indicated to you these girls had had or might have had gonorrhea or syphilis?" And other questions of like import. The latter question was not pertinent as to identify or the corpus delicti of the immediate offense, as was the case in Williams v. State (Ala. Sup.) 138 So. 291. These inquiries were beyond the controverted issues of fact being tried.

Tom Taylor Rousseau testified as a witness for the state, identified the appellants as being among those taken from the train at Paint Rock-from the gondola car-also testified that he did not see the girls when they got off the train, and further testified: "I saw Victoria Price a little later. When I saw her at that time they were coming around the depot with her in a chair. She had her eyes closed and was lying over this way and they were bringing her from the depot up to town to the doctor's office. That was Victoria Price. I saw her later one time from where I was. She was still in the chair." This witness testified on cross-examination, among other things, that: "One of the girls was not in condition to walk. I did not help carry her off. There was an officer toted (carried) the girl up there. They toted (carried) her off the train, a fellow named M. A. Mize. He had to carry her away from the train, unconscious. I don't know about what the doctor said about her being unconscious at that time. I was not there. I was there at the time the girl was taken off."

At this juncture, defendants' counsel asked the witness: "And if he (the doctor) testified immediately after their arrival here or at Paint Rock she was not unconscious, he is mistaken about it?" The objection to this question was properly sustained. It was the province of the jury, not the witness, to say which of the two versions was true. Moreover, the question related, not only to the condition of Mrs. Price at Paint Rock, but also at Scottsboro, and this witness had not testified to her condition at Scottsboro.

Jim Broadway testified, as a witness for the state, that he was present at Paint Rock when Victoria Price and her companion left the train, and further: "I saw Victoria Price there. We got her off the freight train. She was on one of these gravel cars. That is known as a gondola car. There was another woman with her, the Bates girl. The Bates girl seemed to be in fairly good shape, but the other could not hardly talk and couldn't walk." The state's solicitor here asked the witness: "Did you hear them make any complaint there, either one of these girls, of the treatment they had received at the hands of these negroes?" The defendants severally objected to this question on the ground that it called for incompetent, irrelevant, immaterial, and illegal testimony, and for hearsay testimony. The court ruled that the answer be limited to Victoria Price, the...

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