Allen v. State , 87 Ala. 107 ( 1888 )

McCLELLAN, J.

1. The defendant had the right to elicit from the witness Aggie Capers the particulars of the complaint made to her by the prosecutrix.—Griffin v. State, 76 Ala. 29; Scott v. State, 48 Ala. 420; Barnett v. State, 83 Ala. 40. This evidence was material, therefore; and it was competent to impeach the witness, by showing that she had stated these particulars out of court to be other than those to which she testified on the trial. This was proposed to be done by asking the witness Glenn, whether Aggie had not told him that the prosecutrix complained to her that the defendant had tried to rape her, but had not succeeded, a sufficient predicate having been laid for impeachment in this case; and the refusal of the court to allow this question to be put and answered was erroneous.

2. It is unquestionably the duty of the jury to bear in mind, in reaching their conclusions on the evidence, every circumstance properly brought to their attention, affecting the credibility of witnesses who have deposed before them. The fact that a witness is a party to the suit, and interested in the result to be worked out by the verdict, is, both in civil and criminal cases, such a circumstance, and should, therefore, be remembered by them in their deliberations. It is also clearly within the power and right of the jury, to wholly disbelieve' and discard the testimony of any witness, whether a party in interest or to the record or not; but this they are not authorized to do arbitrarily and capriciously, in any case, or with respect to any witness. Certainly the one isolated fact of interest, however great, on the part of the witness, can not be affirmed, as a matter of law, to authorize the jury to disregard his testimony. Nor, even when to interest is added a conflict between the evidence of such witness and other evidence in the case, does it follow that he is not entitled to credence. It would be entirely competent for the jury to accord credibility to such testimony, and reach the conclusion to which it pointed, notwithstanding its infirmities, both of interest and contradiction, as there might be overbalancing infirmity in the conflicting testimony. The charge given at the request of the State was violative of these well-settled principles. It authorized the utter disregard of the defendant’s testimony, for the two reasons alone, that he was the defendant, and that he was contradicted by other witnesses, although, notwithstanding both these facts, the jury might still have believed him. The court should not have gone further in this connection, than' to instruct tbe jury tbat, in determining tbe weight they would give to tbe defendant’s testimony, they should consider — along with all other circumstances having any bearing on the matter- — the fact that he was the defendant, and the fact, if they so found, that his testimony was in conflict with other evidence in the case.—Williams v. State, 74 Ala. 26; Chappell v. State, 71 Ala. 322; Beasley v. State, Ib. 328; State v. White, 27 Amer. Rep. 144, note.

3. The third charge requested by defendant should have been given. It asserts a correct legal proposition, and there was evidence tending to show conduct, from which a belief that the woman had consented might have resulted, though there had been no expression of consent, and though there may, in fact, have been no consent at all. — McQuirk v. State, 84 Ala. 435.

The judgment of the Circuit Court is reversed, and the cause remanded.