Smith v. State , 107 Ala. 139 ( 1894 )

COLEMAN, J.

The defendant was indicted, tried and convicted of the offense of seduction. Several exceptions were reserved to the ruling of the court upon the admission and exclusion of evidence, and also to instructions given and refused, by the court.

The attempts on the part of the defendant to prejudice the prosecutrix before the jury by asking questions which called for mere hearsay and irrelevant evidence were very properly disallowed and excluded. Of this character of evidence we specify the following, to the witness Fannie Smith, the half sister of the prosecutrix : “Did not you and your husband get after her, about something that Polk Wharton said about her?” By the witness Baker, that “ho heard some of the patrons of her school say they had fallen out with her,” and “was it not current in the neighborhood about her going to parties, and that was the cause of her school being broken up?” Nor did the court err in sustaining an objection to questions by the defendant for the purpose of showing that after the birth of the child, he offered to marry her, and she refused; much less has the defendant a right to insist upon the exception, when the record shows that upon his insistence the evidence was permitted to go to the jury. Nor did the court err in sustaining an objection to the question of the defendant to the prosecutrix, why she subsequently refused to marry him. It was entirely competent to receive evidence of the general character of the prosecutrix for- chastity, in rebuttal of the evidence by the defendant tending to impeach her chastity. The court erred in allowing the witness Carrett to testify that defendant's wife had a child within six months after her marriage to him. This was palpable error. The record States that “in a moment or two after'the witness had answered' the question, the testimony was excluded, and the jury were instructed that they must not consider it. ” Courts .have been perplexed in laying down satisfactory rules, where illegal evidence calculated to prejudice the defendant has been received, and subsequently excluded, but it may be regarded as settled in this State, that the admission of illegal evidence, ydiich is subsequently excluded and the jury instructed to disregard such evidence, cures the error, and vitiates the exception reserved to its admission.—A. G. S. R. R. Co.v. Frazier, 93 Ala. 45 ; Jordan v. State, 79 Ala. 12 ; Jackson v. The State, 94 Ala. 85 ; Green v. The State, 96 Ala. 29 ; Childs v. The State, 55 Ala. 30.

We see no impropriety in the remarks of the court to those attending and listening to the trial. Demonstrations of approval or disapproval, or manifestation of ridicule or frivolity, should be suppressed, and the presence of mere boys during a trial of this character, listening to the details, and exhibiting so much interest in the portions of the evidence which partook of the immoral and indecent, is not to be commended. The jury were specially instructed, that the remarks of the court were not intended for them, and had nothing to do with their duty as jurors.

The court was required by the defendant to charge the jury in writing. The charge is quite lengthy and is set out in full in the record. Taking it as a whole, we do not find that it contains any reversible error. It may be that it would have been better if some portions had been omitted, but we find no erroneous principle of law declared, nor any statement as to the policy of the law, incorrect. The main propositions were taken from the opinion in the case of Wilson v. The State, 73 Ala. 527, and which opinion we regard as a correct exposition of the statute.

The first six charges given for the State are all justified by the opinion in the case of Wilson, supra.

The seventh charge given for the State, is sustained by the following authorities : Wilkins v. The State, 98 Ala. 1 ; Dryman v. The State, 102 Ala. 130 ; Norris v. The State, 87 Ala. 85 ; Lewis v. The State, 88 Ala. 11.

The evidence of the prosecutrix tended to show that the first act of sexual intercourse occurred in May, 1891, and during their engagement to be married. The evidence of the defendant tended to show that he had sexual intercourse with the prosecutrix in the latter part of the year 1889, but the evidence shows, that he was at that time under a promise to marry the prosecutrix. The indictment was presented in July, 1892. Both periods were covered by the indictment, and the jury were authorized to return a verdict of guilty if the evidence was sufficient, whether the seduction occurred at the one or the other period. Charges one, five and six, requested by the defendant were properly refused.

Wo arc of opinion that charge 10 requested by the defendant should have been given. It specifies all the 'means contained in the statute itself, and without the use of all or some of which in accomplishing seduction, the defendant could not be convicted under the indictment. This is what is asserted by the charge, and the court erred in refusing it.

Charge 14 was clearly misleading and argumentative, and was properly refused. In criminal cases, the granting of a new trial rests in the discretion of the trial court.

The evidence in this case loaves no doubt in the mind that the prosecutrix used all proper means, and did everything in her power to induce the defendant to fulfill his promise to marry her, a promise he does not controvert, up to and for some time after she gave birth to the child of which he was the father, and that he evaded a fulfillment of his promise with all manner of trivial excuses, never once impugning her chastity, or accusing her of being unfaithful to him, before the commencement of the prosecution.

For the error in refusing charge No. 10, the cause must be reversed.

Reversed and remanded.