Dryman v. State , 102 Ala. 130 ( 1893 )

HARALSON, J.

The only exceptions reserved arise upon the rulings of the court on the charges refused and given. The defendant requested seven charges, each of which was refused. We consider them separately.

No. 1 is argumentative, and was properly refused on that account. It was further faulty in the postulate that a man charged as defendant was, had the right, under the circumstances hypothesized, to embrace-the woman. If under any circumstances he might he justified in so doing, we can scarcely hold he has any rights in the premises.

No. 2 was an improper request. While it is true, the credibility of a defendant testifying in his own behalf may be impeached, in the same manner as that of any other witness, it is not incumbent on the State to impeach him, or else be put in the attitude, as the charge implies, of tacitly admitting that the jury should give full credence to his testimony, although it may be in conflict with other evidence in the cause.

No. 3 is argumentative. It singles out and lays stress on a particular phase of the evidence, and also ignores the lesser degree of 'the crime included in the indictment.

No. 4is contradictory and confusing. It is a striking solicism to say, if a woman by her words and conduct indicates to a man that his embraces will be agreeable to her, and he responds to the invitation, that such an embrace can be against her will.

No. 5 is also contradictory and calculated to confuse;

While the wrong the j ury was concerned about was the one charged in the indictment, it was true, that it was for them to say, at last, whether defendant did wrong or not, a proposition the charge denies.

No. 6 is subject to the vice of singling out the evidence' tending to show the want of chastity in the prosecutrix, disconnected with the other evidence in the case, as being sufficient to generate a doubt of the guilt of the defendant.— Pate v. State, 94 Ala. 14; Johnson v. State, Ib. 35.

No. 7 is as erroneous as can be. The law makes no presumptions as to reputation. In the absence of all proof on the subject, character is not to be taken as either good or bad, and the jury are not authorized to assume that it is the one or the. other, and allow the' assumption to incline them to a conviction or an acquittal. Danner v. State, 54 Ala. 127; Little v. The State, 58 Ala. 265.

There was no reversible error in charge 1 given at the instance of the State.

We find no error in the record, and the judgment of the court below is affirmed.