Posey v. State

143 Ala. 54

• Court: Supreme Court of Alabama
• Decided: November 15, 1904
• Status: Published

Opinion

TYSON, J.

In prosecutions for rape it has been frequently decided by this Court that the State may show in corroboration of the testimony of the assaulted female, that she, shortly after the outrage upon her, made complaint of such occurrence to her father or mother, but such testimony is confined to the bare fact of complaint, and details of the occurrence or the identity of the person accused is not admissible. — Oakley v. State, 135 Ala. 15; S. C. Ib. 29; Bray v. State, 131 Ala. 46 and cases there cited.

This rule was violated in three instances as shown by the record: first, on the direct examination by the State of the girl alleged to have been raped; second, on the examination of her mother; and third, on the examination of her father.

The girl Avas asked by the solicitor, against the objection of defendant, “When did you first tell anybody what the defendant had done to you?” And was permitted to answer, that she told her mother and father the next morning. Both mother and father were permitted to testify against objection that the daughter stated to .them that defendant had raped her.

On direct examination the girl testified, among other things, .that during a portion of the time while she was being outraged she was unconscious. It was entirely .competent on cross-examination of her to test the truthfulness of this statement and, for that matter, to test her recollection and truthfulness as to all othe statements testified to by her.

Her cross-examination seems to have been improperly restricted in this respect. Many other exceptions were reserved to the admission and exclusion of testimony, but only those adverted to above have any merit.

Under the principles declared in McQuirk v. State, 84 Ala. 435, in view of the tendency of the testimony of the girl as to her mental condition produced by the sudden attack of defendant upon her, that portion of the general charge of the court to which an exception was reserved correctly stated the law.

So, likewise, written charges 1, 2 and 3 requested by defendant were properly refused.

Written charge numbered 4 was also properly refused. Sexual intercourse is not an essential of the offense, actual penetration without more, committed forcibly and against the consent of the female, is all that is necessary to be proven. — § 5445 of Code.

Reversed and remanded.

McClellan, C. J., Simpson and Anderson, J. J., concurring.