Shepherd v. State

135 Ala. 9

• Court: Supreme Court of Alabama
• Decided: November 15, 1902
• Status: Published

Opinion

HARALSON, J.

The evidence shoAved without dispute that the prosecutrix Avas a girl of about twelve years of age and lived with the defendant, who was her stepfather. She testified that there were at defendant’s house three children and herself, and the defendant made the others besides herself go out of the house to play; that he shut the door and made her get on the bed when he committed the act of sexual intercourse with her; that he shook her and said he would ldll her if she did not give up to him. The evidence showed that prosecutrix was very ignorant and illiterate.

The State proved by prosecutrix and other witnesses that her mother had died about three weeks before the occurrence. The defendant objected to proof being made as to the death of the mother. The objection was properly overruled. Such evidence was pertinent to show the situation of the parties and opportunity for defendant to commit the act.'

The State examined a Avoman by the name of Nancy who testified that she was called to see prose-cutrix at defendant’s house the day the alleged offense was committed, that defendant was there and she examined her and found, as she expressed it, “that some man had something to do with her,” and her evidence, as well as that of Dr. Wood, tended to corroborate that of the prosecutrix. On the cross-examination of the witness, Nancy, she was asked by-- defendant: “Have yon not been trying.to take Lastena .Russell [the prosecutrix] away from Ed Shepherd, [the defendant] before this alleged offense was .committed?”' To the question an objection by the State was sustained. In this there was error. If allowed to answer, and her answer had been in the affirmative,, it might have afforded some inference to be drawn by the jury that she was unfriendly to the defendant; a fact competent to be shown as bearing on her credibility. Fincher v. State, 58 Ala. 219 ; 1 Gr. Ev., § 450.

The first charge requested by defendant" is subject to the vice of being argumentative, abstract and misleading.

The second charge, basing the right of acquittal on the evidence by defendant - himself, ignoring the .• conflicting evidence of other -witnesses,-.was properly refused.—Finch v. State, 81 Ala. 41.

.The force necessary to be used,, to constitute the crime of rape, need not. be actual, but may be constructive or implied. An acquiescence to the act obtained through duress or fear of personal violence, is constructive -force, and the consummation of unlawful, intercourse by the man thus obtained would be rape.— McQuirk v. State, 84 Ala. 435; Norris v. State, 87 Ala. 85. Charge three was misleading, in that the jury, might have inferred therefrom that actual force was-necessary to constitute the crime.

• Charge 4 is abstract, confused and misleading, and ignores the character of the force hypothesized.

Charge 5 was subject to the vice of being argumentative and misleading. While the jury are the only ones to determine questions of fact, and in a measure are uncontrolled -therein, yet they have no legal or. moral right to arbitrarily and capriciously believe one set of witnesses and not another. It -is their business to weigh the evidence of witnesses in connection with all the evidence, and decide according to their belief from-its weight.—Hussey v. State, 86 Ala. 34.

Reversed and remanded.