Wells v. State

Charge 2, refused to defendant, gives undue prominence to a part of the evidence, and for that reason was properly refused. Prince v. State, 100 Ala. 144, 14 So. 409, 46 Am. St. Rep. 28.

The court did not err in excluding the testimony of defendant's witness Baker, that he had seen Det Brogden, a third person, with a bottle in which there was a corncob stopper, on the night of the alleged rape, and the testimony of defendant's witness Odum, that a bottle with a corncob stopper was found at the house of the party alleged to have been ravished shortly after the alleged rape. There is nothing in the evidence to connect this particular bottle and stopper with the alleged crime, and is not a fact tending to acquit the defendant of guilt. The facts offered are entirely too remote to be admissible.

The court did not err in refusing to allow defendant to prove by the witness Odum that one Det Brogden came to the house of witness on the night of the alleged crime, that Brogden was drinking, and made a statement in the nature of a confession of guilt as to the act here charged against defendant. It is competent for a defendant to show by any legal evidence that another actually committed the offense with which he is charged, and that he is free from complicity in its commission, but it is settled that this cannot be shown by the admissions or confessions of a third person, not under oath; such testimony being hearsay. Owensby v. State, 82 Ala. 63,2 So. 764; West v. State, 76 Ala. 98. The rule seems to be as stated in Spicer v. State, 198 Ala. 13-16, 73 So. 396, 398:

"Where there is evidence tending to connect another with the commission of the crime with which the prisoner is charged,and the evidence adduced against the prisoner is circumstantial [italics ours.], the defendant may adduce any legal evidence tending to fix guilt of the offense on another and to show motive on that other's part to commit the offense."

See Tatum v. State, 131 Ala. 32, 31 So. 369; Walker v. State,139 Ala. 56-66, 35 So. 1011; Lindsey v. State, 18 Ala. App. 494,93 So. 331; Ward v. State, 15 Ala. App. 174, 72 So. 754.

The instant case is not one of circumstantial evidence. The proof of the crime by the state's witness and the identity of defendant is positive, and hence the cases of Grissett v. State, 18 Ala. App. 677, 94 So. 271, and other cases there cited, are not in point upon the proposition here presented.

Ruth Blackman was one of the principal witnesses for defendant in establishing an alibi. On cross-examination, the state was permitted to show, over objection and motion to exclude, that her husband was not at home, and had not been for "some time." This testimony was in connection with questions intimating an undue intimacy between the witness and defendant, which, however, was not admitted or proven. The evidence to which exception was taken was clearly immaterial, and the only question is, Did it probably injuriously affect the defendant's case in the minds of the jury? For impeachment purposes, it may be shown that a witness and defendant were unduly intimate as affecting the interest of the witness then testifying, but this must be done by legal evidence and not by insinuation or innuendo. The fact that a woman is living separate and apart from her husband, and is visited occasionally by a kinsman who comes to see the family, is not even a circumstance to impeach her character or to prove an undue intimacy, disclosing such interest as would bias her testimony.

The fact that defendant, since the alleged rape, had associated with the husband of the woman alleged to have been ravished, is immaterial and irrelevant.

Urgent insistence is made that the court should have granted a new trial because of a failure of proof. The crime was proven by the state's witnesses in every detail, and, while we may think the story as told by them is unusual, even in this class of crime, it is not impossible, and a jury has passed upon its truth. The trial judge, having the benefit of seeing the parties and hearing them testify, has refused to interfere, and this court will not disturb his ruling on this point, but for the error pointed out the judgment is reversed, and the cause is remanded.

Reversed and remanded.