Herring v. State , 14 Ala. App. 93 ( 1916 )

BROWN, J.

(1) The prosecutrix, while testifying as a witness, after giving an affirmative answer to the solicitor’s question, “Did he at any time promise to marry you?” further stated in this connection: “He promised to marry me that very night that he mistreated me, on Saturday night before the fourth Sunday in September of 1914. We were coming on from the church. As wé went on to church he didn’t say anything about it, but, when we were coming on back, he put in to begging me, and he said we would marry, and nobody would ever know it.”

The defendant’s motion to exclude the words italicized was properly overruled. The statement was not a conclusion, but the statement of a fact, which- not only involved what the defendant said, but his manner, tone; and facial expression.

“Where a fact cannot be reproduced and made apparent to the jury, a witness may describe the fact according to the effect produced on his mind.”—Mayberry v. State, 107 Ala. 67, 18 South. 219.

(2) Furthermore, the record shows that the witness, in her subsequent testimony, stated in detail the facts constituting and leading up to the transaction in question.—Fuller v. State, 117 Ala. 39, 23 South. 688.

(3, 4) It was permissible for the prosecution to show the relation between the accused and the prosecutrix, his conduct toward her, whether their association together was frequent and of an intimate character, the fact of accused keeping up a correspondence with her, and its duration and character. — Under-hill, Criminal Evidence, § 388; Bracken v. State, 111 Ala. 68, 20 South. 636, 56 Am. St. Rep. 23. And, where.such correspondence is shown, it was permissible for the prosecution to show that some of the letters written by the accused to the prosecutrix were destroyed at his instance.—Smith v. State, 183 Ala. 10, 62 South. 864. It follows that it was not error for the court to admit the testimony of the prosecutrix that the letters offered in evidence were not all that she had received from him, and that the others were destroyed by her at defendant’s request.

(5) The fact that pregnancy did not result from the act of sexual intercourse between the accused and prosecutrix, if, in fact, he had sexual intercourse with her, was not material, as pregnancy is not an element of the offense of seduction, and the fact that prosecutrix did not become pregnant did not tend in the least to contradict her testimony tending to show that the defendant through art, flattery, or promise of marriage induced her to surrender her virtue and submit to his embraces. It is a matter of scientific knowledge that such intercourse may occur without pregnancy resulting. Therefore, if the defendant had laid a proper predicate by showing the loss of the complaint made before the justice, and that it could not be found after diligent search for it, its contents would (not have been admissible to impeach the prosecutrix on immaterial matter.—Ragland v. State, 125 Ala. 12, 27 South. 983.

(6) It is likewise a matter of common as well as scientific knowledge that pregnancy, in the regular course of nature,- is the result of sexual intercourse, and therefore the fact of pregnancy tends to prove sexual intercourse.—Cunningham v. State, 73 Ala. 51.

(7) The fact that the witness Cook had served a sentence, on the streets was not admissible for the purpose of impeaching his testimony, unless it was for an offense involving moral turpitude, and this does not appear.—Gillman v. State, 165 Ala. 135, 51 South. 722.

(8) The use of the word “segregatery” in the first refused charge appearing in the bill of exceptions for “segregately” justified its refusal.—Gaston v. State, 161 Ala. 37, 49 South. 876.

(9) The uncorroborated evidence of the woman seduced, under our statute,, does not authorize a conviction, but corroboratory evidence as to any material fact which satisfies the jury that the woman is worthy of belief is sufficient.—Suther v. State, 118 Ala. 88, 24 South. 43. There was corroboratory evidence in this case requiring the submission of the issues to the jury and the affirmative charge was properly refused.

(10, 11) The other refused charge complained of, while it asserts a correct abstract proposition, singles out the testimony of the prosecutrix, and ignores the corroborating evidence. Furthermore, this proposition was fully covered by charge 4 given at the instance of the defendant, which was more favorable to him than the rule above announced, in that it asserted that the corroborating evidence “must be as to material matters, and tend to connect the accused with the crime, and to corroborate the evidence of the prosecutrix,” while the true rule is thus stated by Brickell, C. J., in Suther’s Case, supra: “After a thorough consideration of the question the conclusion was reached and the rule announced that the corroboratory evidence is sufficient if it extends to a material fact, and satisfies the jury that the woman is worthy of credit.”

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

Affirmed.