Sanders v. State , 148 Ala. 603 ( 1906 )

1. Criminal Law; Appeal: Bill of Exceptions; Time of Filing; RecordEntries. — It appearing of record that the court was convened in adjourned term on July 17th, 1905, to continue until the criminal cases were disposed of; that jurors were summoned for three weeks; that sentence was imposed July 25th, and an undated entry showing that the defendant gave notice of appeal, and filed his bill of exceptions in term time; and at the end of the bill of exception a statement that the bill of exceptions was signed on August 4th, and within the time allowed by law and by the court; Held, under section 215 code 1896, it sufficiently appeared that the bill had been filed and signed in time.

2. Indictment; Quashing; Organization of Grand Jury. — The fact that 21 names were drawn from which the grand jury that returned the indictment was formed constitutes no grounds for quashing the indictment.

3. Rape; Evidence; Complaint by Prosecutrix. — It was competent to show that prosecutrix had told her foster father what defendant had done and the particulars thereof.

4. Same. — It was not proper to permit a question to prosecutrix as to what time her menses came on.

5. Criminal Law; Evidence; Attempt to Settle Prosecution. — It was not competent to show that defendant had offered money to prosecutrix foster father to quash the proceedings.

6. Rape; Instructions. — While argumentative, it was not erroneous to instruct the jury that if the private parts of prosecutrix were torn and bleeding, this was a corroborative fact.

7. Criminal Law; Instructions; Applicability to Evidence. — An instruction that the known character and proclivities and habits as to chastity of females of the negro race in general might be considered on the question of consent, were argumentative and not based on any evidence in the case, and were properly refused. The defendant in this case was found guilty of the offense of rape, and sentenced to be imprisoned in the penitentiary for 10 years. The record shows that the adjourned term of the court was called to meet on July 1.7th, and to continue until the criminal cases on the docket were disposed of; that jurors were ordered to he summoned for three weeks; that this case was tried on July 22d; that the defendant was sentenced on July 25th. Just after the minute of sentence, there is an entry, not dated, stating that, "the defendant having given notice of appeal, and having filed his bill of exceptions in term time, the execution of this sentence is hereby suspended," etc. At the close of the bill of exceptions are these words: "The foregoing bill of exceptions is now signed by me, J. T. Lackland, judge of the circuit court of Monroe county, Alabama, and is now dated by me the 4th day of August, 1985, the same being within the' time allowed by the order of the court for the signing of the said bill of exceptions." The 4th day of August would be Friday of the third week of said court. While the record should be more explicit, yet we think it sufficiently appears that the bill of exceptions was "signed during the term. The record states positively that the bill of exceptions was filed in term time. It could not become a part of the record and be entitled to be filed until after it was signed. — Code, 1896, § 615.

The motion to quash the indictment, because more than 21 nameswere drawn from which to form the grand jury, was properly overruled. — Rogers v. State, 144 Ala. 32, 40 So. 572.

There was no error in allowing proof of the particular statement of the prosecutrix to her adopted father, Puryear.

The objection to the question marked 6 was properly sustained. In the form in which the question was framed, it does not show that it was material. It should have been confined to the condition of the witness at the time complaint was made.

The court erred in allowing the witness, Sandy Puryear, to testify, against the objection of the defendant, that the defendant had offered to bribe him to "squash" the proceedings. Said Puryear was not morely a witness, but, being the father by adoption of the prosecutrix, this was not analogous to the cases where efforts were made to bribe witnesses, but was an effort to compromise the case. The decisions of this state are uniform to the effect that efforts to compromise cannot be proved as admissions against the party making them. It is true that these decisions have been in civil cases, and in one instance in a quasi criminal case of bastardy. — Martin v. State, 62 Ala. 119. But in a criminal case this court, speaking through Brickell, C. J., applies the same reasoning, and gives cogent reasons why courts should be careful about admitting such testimony. — Wilson v. State, 73 Ala. 527. It is true that there is no authority of law for compromising a felony, yet it is a fact that less penalties are sometimes agreed upon between the prosecutor and the defendant, and, however that may be, an effort to compromise is not an admission of guilt. "The true reason for excluding an offer of compromise is that it does not ordinarily proceed from and imply a belief that the adversary's claim is well founded, but rather a belief that the further prosecution of that claim, whether well founded or not, would in any event cause such annoyance as is preferably avoided by the payment of the sum offered. In short, the offer implies merely a desire for peace, not a concession of wrong done." — 2 Wigmore on Evidence, p. 1231, § 1061c. While there are decisions to the contrary in other states, yet the reason of the law, as expressed by our own court and the eminent text-writer just quoted, commends itself to our judgment.

While charge 1, given by the court at the request of the solicitor, might have been refused, as argumentative, yet the court cannot be placed in error for giving it. — Karr v. State, 106 Ala. 1,17 So. 328.

Charges 11, 12, 13, 14, and 1.5, requested by the defendant, were properly refused, as they were argumentative, and not based on any evidence before the court.

The judgment of the court is reversed, and the cause remanded.

Reversed and remanded. All the Justices concur.