Murphy v. State

On Rehearing

CATES, Judge.

Judge McElroy, in his Law of Evidence (2d Ed.), § 149.01(4), states:

“It is submitted that any requirement that the witness be asked about the state of his feelings is unsound; indeed, the Supreme Court decisions [inch Shanes v. State, 233 Ala. 418, 172 So. 272] hold or clearly indicate that no such inquiry need be made * * * with the result that the above-cited Court of Appeals decisions must be considered as having no force as precedents.”

Hence, what we quoted from Slagle v. State, 39 Ala.App. 691, 108 So.2d 180, needs to be read in the light of the Shanes case, supra.

This, however, does not alter our view that the letters to show the prosecutrix had been “carrying on” with a married man who was in the county, jail at Dadeville were irrelevant.

The most feverish passage expresses the wish that she might have been able to share the cell with him:

“I wish I could have gotten in your cell with you Sunday. I have so many things to say to you. I was at your house yesterday, and I met your moth-e'r. I remember that night very much. I had a lot of fun that night. I wish we were out there now. Yes, I love you; and I will be your bride so you can go ahead and ask Sue for a divorce.”

In rape, unchaste repute may be shown as bearing on consent.

“In prosecutions for rape, and in kindred proceedings, where nonconsent is an element of the offense, in which the chastity of a woman may be brought into question, the character of the woman for chastity may be impeached; but this is usually done by evidence of her reputation in that respect, and not by proof of particular acts of unchastity. * * * ” Story v. State, 178 Ala. 100, 59 So. 481.

“ * * * the purpose of offering these letters and questioning her is to show that the theory of our case is that she is accusing this man here to cover up acts of intimacy with this other man. * * * ” (Italics added.) — from appellant’s brief.

This theory might go to bias, but the letter does not support the theory even as to intimacy.

Application overruled.