Herbert v. State

77 So. 83, 16 Ala. App. 213, 1917 Ala. App. LEXIS 262

• Court: Alabama Court of Appeals
• Decided: June 26, 1917
• Docket: 8 Div. 526. [fn*]
• Status: Published

Opinions

The objections to the testimony as to the subsequent and continuous association, protestations of love, and acts with the prosecutrix, tended to corroborate the statement of the state's witnesses, and to have shown a motive for her having yielded her virtue to him. It is earnestly insisted by appellant's counsel that the opinion in the case of Pope v. State, 137 Ala. 59, 34 So. 840, is contrary to this view. From a casual reading of that case, it would appear that it is in conflict with this decision; but such is not the case. In the Pope Case, there was no question as to the prior chastity of the prosecutrix, and therefore the testimony in that case could only have reference to an election. In the instant case, the defendant testifies to facts which, if believed by the jury, tended to impeach the virtue of the girl prior to the time she yielded to him. In a case of seduction, where the chastity of the woman at and prior to the time alleged is made an issue, the acts and conduct of the parties towards one another during the period of continuous relationship should be permitted to go to the jury, to aid them in determining whether the act was caused by a yielding confidence, under promise of marriage, or of arts or flattery, a surrender to passion, or for commercial reasons. This view is sustained in Underhill on Criminal Evidence (2d Ed.) § 390, and authorities under note 64; 35 Cyc. p. 1350 (c); State v. Robertson,121 N.C. 551, 28 S.E. 59; Keller v. Donnelly, 5 Md. 213-219; People v. Elco, 131 Mich. 519, 91 N.W. 755, 94 N.W. 1069. And in the case of Bracken v. State, 111 Ala. 71, 20 So. 636, 56 Am. St. Rep. 23, Mr. Justice Haralson, in passing upon the admissibility of the letters written by the defendant to the prosecutrix subsequent to the date of the alleged seduction, held that they were properly admitted in evidence, and in Wigmore on Evidence, vol. 1, par. 118, it is said, "Conceding an emotion, then, as a circumstance showing the probability of appropriate ensuing action, it is always relevant," and Mr. Justice Woods, in Ferguson v. State, 71 Miss. 814, 15 So. 66, 42 Am. St. Rep. 492, says that the admission of such evidence is without injury to the defendant.

We are therefore of the opinion that as the defendant sought to impeach the chastity of the prosecutrix prior to November 19, 1913, the date upon which she said the offense was committed, the evidence was admissible as tending to establish her chastity prior to that time, and furnishing a motive for yielding to his embraces.

The case of Pope v. State, is not in conflict with the foregoing views.

Charges A and 2 are the general charge, and were properly refused.

Charges 10 and 8 were properly refused. "Even though she had previously fallen, she may have reformed, and, if she yielded to him then only under promise of marriage, she may have at that time had the virtue of chastity within the meaning of the statute, entitling her to its protection." The dawning of each day may be the beginning of a new life — not, to be sure, without the scars of the past — but with the promise of a blameless future. Suther v. State, 118 Ala. 88, 24 So. 43; Weaver v. State, 142 Ala. 40, 39 So. 341, paragraph 8.

Charge 13 is incomplete, argumentative and misleading.

Charge C, it will be observed, reads:

"If you believe from the evidence that the prosecutrix, Miss Henderson, was unchaste at and prior to the time the defendant first met her, then I charge you that the burden is upon the state to establish by the evidence beyond a reasonable doubt that the prosecutrix had reformed, and that she was chaste at the time the 'defendant promised defendant' to marry her and thereby induced her to have sexual intercourse with him."

A casual reading of this charge will disclose the fact that it was involved, and therefore was properly refused.

For the above reasons, the motion for a new trial was properly overruled. The judgment of the trial court is affirmed.

Affirmed.

On Rehearing. The original opinion is withdrawn, the amplified opinion is substituted therefor, and the application for rehearing is overruled. Application overruled.