Pitts v. State , 210 Ala. 662 ( 1923 )

The condition of the genital or external organs of the woman immediately before and after the alleged offense of rape or kindred crime is relevant, competent, and material evidence, tending to prove or disprove that such offense has been committed. Scott v. State, 48 Ala. 420; Myers v. State, 84 Ala. 11,4 So. 291; Malloy v. State, 209 Ala. 219, 96 So. 57; Riley v. State, 209 Ala. 505, 96 So. 599; Cole v. State,97 So. 891.¹ Such evidence is always relevant to corroborate or contradict the woman's evidence as tending to show the probability or improbability that a rape was committed. Barnett v. State, 16 Ala. App. 539, 79 So. 675; Underhill on Crim. Ev. § 413, p. 693; 33 Cyc. p. 1471.

The remoteness of the examination, given in evidence, from the time of the offense and the opportunity for intervening cause, affects the probative force of such evidence. Myers v. State, 84 Ala. 11, 4 So. 291; 33 Cyc. p. 1471. Moreover, under the evidence recited in the opinion of the Court of Appeals, the evidence in question should have gone to the jury on the theory of a conspiracy of the several parties, including defendant, to debauch the woman; and the acts of one conspirator in the furtherance of said common unlawful purpose are admissible against all of the conspirators. Pierson v. State, 99 Ala. 148, 13 So. 550. A conspiracy vel non is a jury question, and may be shown by circumstances and by the actions of the parties; and in this proof wide latitude has been permitted.

The writ is granted, the judgment of the Court of Appeals is reversed, and the cause is remanded to that court for further consideration and action pursuant to the foregoing.

All the Justices concur.

¹ 19 Ala. App. 360.