Barnes v. State

88 Ala. 204

• Court: Supreme Court of Alabama
• Decided: November 15, 1889
• Status: Published

Opinion

McCLELLAN, J.

The testimony of the witness Sid. Adams was properly admitted. It tended to show the desire of the defendant to have carnal knowledge of the prosecutrix, as well as his belief that she would not yield to his wishes; and it was relevant as affording the jury a basis for the inference that he had gratified his passion in the manner charged in the indictment. Such evidence,' of itself, is entitled to little weight, especially when the declarations deposed to were made a great length of time before the alleged offense; but the mere lapse of time will not render them incompetent. Thus, on a trial for murder, it was held to be proper to prove that the defendant, two or three years before the homicide, had said of the deceased, “There is a man I can not get along with.” — Evans v. State, 62 Ala. 6; 2 Tay. Ev., § 1209. Evidence of the defendant’s carnal passion for the prosecutrix, on a charge of rape, is strictly analogous to unfriendliness and hostility in a prosecution for murder. In the latter case, declarations of hostility, not amounting to threats, made at any time prior to the offense, are clearly admissible. — Hudson v. State, 61 Ala. 333; Johnson v. State, 87 Ala. 29.

The defendant was, of course, entitled to prove prior acts of undue intimacy between himself and the prosecutrix, as furnishing a predicate for the presumption of consent on the occasion of the alleged crime; and we do not understand that the court below denied him this right in any degree. Evidence that the husband of the prosecutrix “was jealous of her,” or “jealous of her and the defendant,” and objected to her being with the defendant, or with the witness Stewart, in its strongest aspect for the defense, could only show that he suspected her of improper conduct, or undue intimacy with those parties; and we are unable to conceive a case which would authorize the proof or disproof of a material fact, by evidence of the mere conjecture or suspicion of its existence.

There was no error in excluding the testimony of the witness McCarver, to the effect that the place; which he supposed or had been informed was the scene of the alleged offense, disclosed nothing to indicate a struggle. The locality described by him was in no way identified as that at which the crime had been committed.

It is the settled doctrine of this court, that the discretion of the presiding judge as to the exclusion of witnesses, or any particular witness, from the court-room during the progress of the trial, is not revisable. — McGuff v. The State, ante, p. 147, and cases cited.

The evidence of the husband of the prosecutrix, as to the fact that his wife made complaint to him in regard to the alleged offense, and as to the circumstances under which the complaint was made, was clearly competent. — Leoni v. State, 44 Ala. 110; Lacy v. State, 45 Ala. 80; Griffin v. State, 76 Ala. 29; Barnett v. State, 83 Ala. 40.

We discover no error in the record, and the judgment of the Circuit Court must be affirined,