Myers v. State , 84 Ala. 11 ( 1887 )

STONE, C. J.

The words female and woman, used as the former was in the indictment before us, mean the same thing, and the indictment is sufficient. — 1 Brick. Dig. 499, § 736; Sparrenberger v. State, 53 Ala. 481; Smith v. State, 63 Ala. 55; Block v. State, 66 Ala. 493; Parker v. State, 39 Ala. 365; Watson v. State, 55 Ala. 150.

The expert witness, who had made a professional examination of the girl, the alleged subject of the rape, was asked to state the condition in which he found her and her clothing. This was ten days after the offense was charged to have been committed. The witness gave testimony “astothe condition of the girl on the 27th day of January, 1888.” He is not shown to have said any thing about the clothing. Both the question and the answer were objected to, and exceptions reserved.

As there is not shown to have been any testimony given in regard to her clothing, we need only say that such testimony would probably have been improper, given so long after the alleged offense. It can not be presumed that the physician had knowledge of the clothes she had worn ten days before. But the question did no harm unless it was answered; and in the absence of all statement that it was answered, we must presume that it was not. — 3 Brick. Dig. 444, § 577.

The testimony of what the physician discovered on an examination of the girl ten days after the injury, was not per se irrelevant. It is not shown what the testimony was. It may have tended to prove, or confirm other testimony tending to prove, penetration; a material ingredient in the crime of rape. — 2 Bish. Or. Law (7th Ed.), §1127. Other possible pertinent facts or circumstances might exist and be discovered by a physician, about which he would be clearly competent to testify.

There is no error in the record.

Affirmed.