Pitts v. State

A careful reading of the evidence fails to disclose any objection taken or exception reserved to any part of the evidence properly presenting a question for review by this court. There was no objection taken to any portion of the testimony of Dr. A.W. Trigg, the physician who made the physical examination of Eula May Lee, the girl alleged to have been ravished, and who testified to her physical condition on the Wednesday night and several days thereafter following the Sunday night the defendant was alleged to have committed the crime. Mrs. Samps Lee, the mother of the girl, also testified to her physical condition. No objection was interposed to any portion of her testimony. No objection was interposed to any portion of the testimony of Eula May Lee, who testified to the details of her harrowing experience from the Sunday night on which she said the defendant ravished her until after her return home the following Wednesday. She also testified to her physical condition before and after the alleged commission of the crime.

S.A. Lee, the father of the girl, testified without objection to the efforts he and others made to find the girl from Sunday night until Wednesday afternoon, and, after testifying that when he found her "she was in bad shape, her hair was all rumpled up, wet and dirty, her clothes were torn, her shoes were ripped, all muddled and burst; we had to carry her to the car," the solicitor for the state asked, "State whether or not she was in normal state," counsel for defendant made a general objection to the question, the court overruled the objection, and the defendant excepted to the ruling of the court. The witness answered, "She was not." Counsel for defendant moved the court to exclude the answer without specifying any grounds therefor. The court refused the motion, and the defendant excepted.

The solicitor asked the witness to state whether or not Eula May Lee resisted or went willingly, and the witness answered:

"She did not seem to realize anything about it. She did not seem to know anything about it."

Counsel for defendant moved to exclude the answer without specifying any grounds. The court overruled the motion, and defendant excepted. No objection was made to the question.

The solicitor asked, "What was her physical condition prior to the time she left Blocton on that Sunday afternoon?" The defendant interposed a general objection, and the court overruled the objection. The witness answered, "She was in good health." No motion was made to exclude the answer.

Mrs. S.A. Lee, the mother of the girl, being recalled, testified:

"I stayed with my daughter after she was brought back from Piper. She remained in bed about three weeks. She was not able to sit up any at all. * * * During that time I observed her private parts were very badly torn indeed. She had a bloody discharge at the time the doctor examined her."

No objection was interposed to any portion of the testimony of Mrs. Lee. Every objection interposed by defendant to any portion of the testimony of any witness throughout the trial is set out above. There was not a single instance in which any ground of objection was specified. There is not a single objection which can avail the defendant under the well-settled rules laid down by both the Supreme Court and this court in numerous cases.

Where the evidence elicited is not patently and palpably illegal, a general objection presents no question for review in the appellant court, as there must be special objection pointing out the grounds of irrelevancy or illegality. Washington v. State, 106 Ala. 58, 17 So. 546; Gunter v. State, 111 Ala. 23, 20 So. 632, 56 Am. St. Rep. 17; Nickerson v. State, 6 Ala. App. 27, 60 So. 446; Key v. State, 4 Ala. App. 76, 58 So. 946; McClellan v. State,117 Ala. 140, 23 So. 653; Thomas v. State, 139 Ala. 80,36 So. 734; Waters v. State, 117 Ala. 108, 22 So. 490; Linnehan v. State, 120 Ala. 293, 25 So. 6; Brooks v. State,146 Ala. 153, 41 So. 156; English v. State, 14 Ala. App. 636,72 So. 292.

It cannot be said that the testimony was patently illegal. Myers v. State, 84 Ala. 11, 4 So. 291.

On a prosecution for rape, evidence of the condition of the genital organs of the woman after the alleged offense is a material inquiry, and evidence is competent to prove whatever signs of injury she showed. Such evidence tends to prove or disprove a material inquiry in the case whether the woman was forcibly ravished. Malloy v. State, 209 Ala. 219, 96 So. 57; Cole v. State, ante, p. 360, 97 So. 891.

Physicians may testify to the physical condition of the woman upon examination made after the crime was committed, but the remoteness of such examination affects its probative force.

In Myers v. State, 84 Ala. 11, 4 So. 291, the examination was made ten days after the crime was alleged to have been committed, and the court held that this evidence was not per se irrelevant; that it may have tended to prove penetration, a material ingredient in the crime of rape. 33 Cyc. 1471.

Testimony of a physician that he had examined the prosecuting witness, an unmarried woman, in a prosecution for rape, more than four weeks after the alleged crime, that he then found her hymen ruptured or penetrated, is admissible against the accused. Lyles v. United States, 20 App. D.C. 559.

The prosecutrix testified positively that the defendant had intercourse with her by force and against her will. Evidence of her physical condition three or four days after the alleged crime was admissible, although there was evidence that other men ravished her two days after the time she said defendant had connection with her. The evidence tend to show that the act of the defendant contributed to her physical injury and condition, as well as penetration, a necessary element of rape. It was not necessary for the state to show what part of the woman's injury was due to the act of the defendant. Can it be the law of this state that evidence of the physical condition of the woman may not be admitted against the first man who ravishes her, simply because three others ravished her two days later, and the physical examination was made one or two days thereafter, and as soon as the unfortunate victim could be rescued from her ravishers? I think not. There is no reason or logic for such law, and the cases cited by the learned judge delivering the majority opinion in this case do not in my opinion sustain the conclusion reached by the majority.

There are cases holding that when the examinations was made at a distant time and acts of intercourse with others have taken place the evidence is too remote. But in the instant case the examination was not made at a distant time; it was made at the first opportunity possible after the rescue of the girl, and within four days after the defendant, according to the girl's account, had ravished her. She was in the possession of the defendant and his confederates in this diabolical debauchery from the time she said defendant ravished her until she was rescued after a continuous search by her father and relatives for four days; and the evidence shows that the defendant had on Tuesday night, after the Sunday night the girl said he ravished her, told the brother of the girl in the presence of her father that he had not seen her and knew nothing about her.

The evidence shows that Dewey Pitts and Frazier carried the girl to the house of Ed Pitts' sister-in-law, Mrs. Reach, a woman of bad repute, and it is impossible to resist the conclusion from all the evidence that he then knew where she was, and that he had been aiding the others, Dewey Pitts, defendant's brother, and Joe Holder in their horrible debauchery of the girl. The defendant finally admitted to the father and others that he did know where the girl was on Sunday night, and that he then (on Tuesday night) knew about where she was.

The girl had been persuaded by her sweetheart, Clifford Frazier, upon promise of marriage and statement that he had a license to marry her, to leave her home and start out upon the journey which resulted so disastrously to her. She was in company with Frazier at one time; Ed Pitts at another; Dewey Pitts at another; sometimes two or three of them were with her; and Joe Holder, the man who had the car to take them to Birmingham to be married, came upon the scene and also raped the girl. There was evidence sufficient to go to the jury upon the question of conspiracy of all these parties to debauch the girl, and evidence of the acts of one conspirator in the furtherance of a common unlawful enterprise is admissible against all. 1 Mayfield's Dig. p. 6, § 6; Pierson v. State, 99 Ala. 148, 13 So. 550.

A conspiracy may and often can only be proven by circumstances and actions. Marler v. State, 68 Ala. 580.

Conspiracy vel non is a jury question; and a wide latitude is allowed in proving it. Morris v. State, 17 Ala. App. 126,82 So. 574.

The evidence of the girl's father as to her appearance and condition immediately after she was rescued from the men who had debauched her was clearly admissible. The only other question in the record is the refusal of the affirmative charge to the defendant. There was a conflict in the evidence; there was ample evidence to justify a conviction; and the court properly refused the affirmative charge.

I am of the opinion that the application for rehearing should be granted; that the judgment reversing and remanding this cause should be set aside, and the judgment of the circuit court affirmed.