Smith v. State

118 Ala. 117

• Court: Supreme Court of Alabama
• Decided: November 15, 1897
• Status: Published

Opinion

HARALSON, J.

1. In a case of this character, the inquiry is not as to character or reputation of the prosecutrix, but as to her actual chastity at the time of the alleged seduction. — Hussey’s Case, 86 Ala. 34; Wilson’s Case, 73 Ala. 527.

The witness for defendant, Mat. Sanford, testified to facts the tendency of Which was to impeach her chastity at that time., It was competent, therefore, for the prosecutrix in rebuttal, also to adduce evidence of her general character at that time. — Smith’s Case, 107 Ala. 139. Proof of character in this respect, however, since the alleged seduction, is irrelevant to show, chastity at the time of seduction. A woman who was unchaste Avhen seduced, may have since reformed and established a .good reputation, but it would not follow therefrom, that she Aims not unchaste at the time of her seduction. The proof in such cases, should be limited to character at the time of and previous to the alleged seduction.- — White’s Case, 111 Ala. 92; Bracken’s Case, Ib. 68; 1 Brick. Dig. 513, §914.

The witness, Thomas Warren, was asked on cross-examination by the State, “If he knew the character of the prosecutrix, in the neighborhood where she lived, for chastity, before and after the time of her troubles with defendant?” Objection was raised by defendant on the ground that the question called for illegal, irrelevant and incompetent evidence. The evidence, it is presumed Avas called for in rebuttal to evidence by defendant tending to impeach her chastity. For this purpose, character up to the time of the alleged seduction was, a.s we have seen, competent; but proof of such character after that time, was not proper. The objection was not to a part, but to the whole question and its answer, and as the objection was not limited to that part of the evidence sought, which was illegal, but was general, to that which was legal as well, it was properly overruled.

2. It is well settled that the giving or refusing a charge involving an inquiry into the sufficiency of the evidence to authorize a conviction, will compel a reversal of the judgment, where there was no proof of venue, and that where there has been no instruction going to the sufficiency of the evidence to convict, no reversal can be had on account of the absence of evidence of venue from a bill of exceptions reciting that it contained all the evidence, there being no point made in that connection in the court below. — Hubbard’s Case, 72 Ala. 164; Bowden’s Case, 91 Ala. 61, 62; Benner’s Case, 112 Ala. 70.

In this case there was full proof without conflict of the venue of the crime in Cherokee county, and no instruction was given or refused in respect to the sufficiency of this proof. Charge 1, given at the request of the State, which ignored proof of venue, fully established, was not, therefore, as contended, faulty on that account. — Clarke’s Case, 78 Ala. 474.

3. Charge 6 for the State was free from error, and has been heretofore approved by us. — Wilkins v. State, 98 Ala. 1; Miller’s Case, 107 Ala. 42; Smith’s Case, Ib., 140. And so was charge 10. — Lewis’ Case, 88 Ala. 11; Moore’s Case, 68 Ala. 360.

The other charges requested and given for the State, were correct instructions. See authorities cited sustaining them, under section 5503 of Code of 1896.

The chastity of the prosecutrix must be presumed, until the defendant introduces evidence to the contrary. The burden is on him to impeach it. — Wilson’s Case, 73 Ala. supra; 21 Am. & Eng. Encyc. of Law, 1047, and authorities there cited. When he has introduced evidence sufficient to raise a reasonable doubt of the guilt of defendant, he is entitled to acquittal. — Smith’s Case, supra; Carney’s Case, 79 Ala. 14.

4. Charge 2 requested by defendant was properly refused. While asserting a generally correct proposition •of law, it was calculated to confuse and mislead the jury. Evidence had been introduced by the State tending to show the character of prosecutrix, up to the time of the alleged seduction, in rebuttal of evidence by the defendant tending to impeach her chastity at that time. The giving of the charge would have tended to render nugatory this rebutting evidence on the part of the State.

5. Charge 4 requested by defendant and refused seems to be free from error, and does not appear to have been duplicated in other charges given at his request. We do not deem it important to review the other refused charges of defendant, as several of them are substantially duplicated in charges given at his request, and because, from principles laid down above, the cause may be retried without liability to error.

Reversed and remanded.