Hall v. State

TYSON, J

No objection was- taken- to the organization of the grand jury, in the court below, that preferred the indictment upon which the defendant was convicted. But this is of no consequence, if the illegality of its organization affirmatively appears in the record, since this court would be compelled to take the point as no valid conviction! can be based upon a void indictment. — Finley v. State, 61 Ala. 201. The record dis1 closes t-liat the number drawn to serve on the grand jury Avas eighteen. That only fifteen of this number appeared and that by reason of an excuse alloAved by the court, one other Avas not required to serve, thus reducing the number to fourteen. Thus “a contingency existed in Avbich the court had power and it became,a duty, to complete the jury, by ordering the summons of a sufficient number of qualified citizens to supply the deficiency. In the exercise of this power, the court could order a summons of only such number as would increase the. jury to fifteen or of such number to increase it to tAventy-tAAro or to an intervening number, as in its discretion Avas deemed best for the administration of justice. Either number would, under the statute, complete the grand jury Avhen empanuelled and sworn, and the selection of either is not an excess of the power conferred upon the court. — Kilgore v. State, 74 Ala. 1. The court ordered the summoning of six persons and, if all had appeared, this Avould not have increased the number to tAA'enty-one. Presumptively only three appeared who Avere placed upon the jury, making the grand jury composed of seventeen persons. There was, therefore, no necessity, under the terms of the statute, of having the names of those three persons written on separate slips of paper, folded, placed in a, box and drawn. — Code, § 5023. Besides, we cannot affirm that this Avas not clone. There, is, therefore, no merit in the contention that the grand jury AAras illegally organized.

The matter attempted to be set up in the plea of abatement Avas not proper subject for plea. There Avas, therefore, no error in sustaining the demurrer to the plea. Nor can the Aveight or sufficiency of the evidence upon which the grand jury acted in finding the indictment be 'inquired into. — Sparrenberger v. The State, 53 Ala. 481.

It may be doubted whether the overruling of the motion to quash the indictment upon the grounds relied upon is revisable by this court — whether it is not a matter- addressed to the discretion of tire trial court. — Johnson v. State, 133 Ala. 38; Bryant v. The State, 79 Ala. 282; Bishop on Crim. Proc (3rd ed.), § 761; The State v. Dayton, 3 Zarbriskie (N. J.), 49; The State v. Baldwin, 1 Dev. & Bat. (N. Car.) 195; State v. Rosenburgh, 7 Wal. 580 and other cases. cited in notes 4 and 5 in Bish. Crim. Prac. under section 761. However this may ,be, we feel sure that there is no merit in any of the grounds of the motion. We entertain no doubt as to the correctness of the rule declared in Spigener v. The State, 62 Ala. 383, where this court, speaking through Stone, J., to a motion to quash an indictment or to strike it from the flies “because the same Avas not voted or preferred as a true bill,” said: “The statutes require the grand- jurors to take an oath that they Avill keep- secret the State’s counsel, their fellows and their OAvn.— Code of 1876, section 4755; see, also, sections 4134-5, [§§ 5024-5, Code, 1896]. Indictments, AAdien found, are presented to the court in open session by the grand jury as a body. This is a solemn, official affirmation to the court that the bills then presented, indorsed by the foreman true bills, and signed by him, are the findings of at least twelve of the grand jury. The grand jurors being present, if any bill, so- presented, was unauthorized by the requisite finding, the fact should then be made knoAvn. The indictment being returned and delivered to the court, is then indorsed by the clerk and filed in his office, and becomes a record of the court. — Code of 1876, sections 4677,' 4821, [Code of 1896, §§ 4914 and 4916]. Indictments having these solemn sanctions thrown around them, it is not permissible to receive testimony, either of the grand jurors, or any other1 person cognizant of the facts, to shoAV how any grand juror, or any number of them, voted on- any particular finding. The record cannot be disproved in this way.” It would seem as a logical deduction from the principle declared above, that the conduct of the solicitor in the matter of advice to the grand jury and of the presiding judge in giving them special instructions cannot be allowed to impeach the record unless their conduct amounted to a fraud of such sort as would authorize a court to go' behind and set aside judgments and decrees. But, independent of this consideration, in Adew of the imposition of secrecy laid upon the consciences of the members of the grand jury by their oath and the public policy declared, impliedly, if not expressly, in our statutory system regulating the organization of grand juries; the conducting by them of the inquisitorial examination into all indictable offenses given to them in charge by the court, as Avell as those, brought to their knowledge committed or triable in the county; the secrecy of the finding of the indictment expressly' enjoined upon them, the judge, solicitor, clerk and other officers who may knoAV of its finding until after the arrest of defendant; the duty imposed upon every grand juror AArho knows or has reason to believe that a. public offense has been committed to disclose the same to his felloAvs; and the legislative declaration relieAdng the juror of the obligation of secrecy, requiring him to disclose, in certain specified cases, the occurrences in the grand jury room, seem to us to establish a rale of public policy in this State, that forbids any member of the grand jury, preferring the indictment, should disclose any fact or facts which entered into the consideration influencing their finding. Certainly to permit a grand juror to testify that one or more of the jury did not vote for the finding of the bill or indictment or matters influencing the action of members of the jury would be not only a violation of his oath as a grand juror, but would be destructive and subversive of the grand jury as an institution of our judicial system and destructive of that security of freedom of thought and action and, therefore, of that independence: so absolutely essential to the faithful discharge of the duties imposed upon that body, which if impaired or destroyed would be fatal to a vigorous administration of the criminal law. — Proffatt on Jury Trial, p. 89; 17 Am. & Eng. Ency. Law (2d ed.), 1295; The State v. Johnson, 115 Mo. 480; Elbin v. Wilson, 33 Md. 135; People v. Thompson, 81 N. W. Rep. (Mich.) 344; Ex parte Sontag, 64 Cal. 525. This latter case cited is Arery much in point, since the statutes reviewed by the court are very similar to' ours. Our conclusion upon the point under consideration finds support in the decisions of our own court, which hold it to be against the policy of the law to allow a petit juror to impeach a verdict rendered by a jury of which he was a member. — City of Eufaula v. Speight, 121 Ala. 613; Clay v. The City Council of Montgomery, 102 Ala. 297. This being undoubtedly the rule as to petit jurors, much more weighty are the considerations for applying and enforcing the same rule as to grand jurors. With the testimony of the two members of the grand jury, who were examined as witnesses, to prove the facts alleged in the motion, eliminated, there is no proof of the facts alleged in it. We might stop here. But if that evidence could be considered, we do not think that it can be affirmed that it establishes the fact to the exclusion of every reasonable doubt that the grand jury were improperly influenced to find the indictment. — Sparrenberger v. The State, supra. Nor do we think that it shows any conduct on the part of the judge or the solicitor which would vitiate the indictment. The motion was properly denied.

The next question presented is the action of the court in holding the defendant’s plea in bar, of autre fois acquit, insufficient. By the averments of that plea it is made to appear that the defendant had been indicted for rape upon the girl whom it is here charged he seduced, and that he was acquitted by a jury after trial upon the merits. It is further averred in the plea that the defendant had only one act of sexual intercourse with the girl and that this act was involved in the charge of rape upon which he was tried and acquitted, and that the same act is involved, in the charge of seduction for which he is arraigned in the present case. It is insisted that because this act of sexual intercourse was a necessary ingredient and, therefore, must necessarily be proven in order to sustain both charges, that the acquittal on the charge of rape is a bar to this prosecution. In other words, because this single art is common to both offenses, although each offense necessarily includes other acts entirely different, having no resemblance whatever to each other, that an. acquittal of rape is an acquittal of the seduction. To see that the act of sexual intercourse is the only one at all common to both offenses, we have but to point out that in rape, force, actual or constructive, is necessary, and tbe character of the female for virtue and chastity, except as bearing upon the question of consent, is utterly immaterial, as is also whether she be a married or an unmarried woman ; while in seduction the female must be an unmarried w'oman, and her consent to the act of sexual intercourse must have been obtained by means of temptation, deception, arts, flattery or a promise of marriage. The rule in this State is that: “A former acqnitta.1 is no bar to a subsequent prosecution, unless the accused coulcl have been convicted npon the first indictment, upon proof of the facts averred in the second.” — Dominick v. The State, 40 Ala. 680; The State v. Standifer. 5 Port. 528; Bowen v. The State, 106 Ala. 178. See also Stewart v. The State, 60 Am. St. Rep. 35 and note. We have but to apply this rule to the plea to' see its insufficiency and the correctness of the ruling' of the court in sustaining the demurrer to it.

The next point pressed upon our attention for consideration is that the testimony given by defendant upon his trial for rape was improperly admitted. The argument made proceeds upon the idea that the con-' fessioms or admissions made by him while testifying were not voluntary. That he was on that occasion “flattered by hope” and “tortured by fear” into' admitting the fact of the girl’s consent to his intercourse with her, one of the necessary constituents of the crime with which he is now charged and being tried, and which, it seems, he succeeded in getting" the jury trying him for rape to believe. It is not contended that the rule which applies to the admission of confessions, extra-judicial, requiring the prosecution to show them affirmatively to have been voluntarily made before they are competent, has any application here. The argument is rather, that his confession that the girl consented to his intercourse with her, was made under such circumstances and surroundings as to beget falsehood, rather than truth, and, therefore, being impelled by the desire to be acquitted, his admission of that criminating fact was not voluntary. The answer to all this, it seems to me, is that he was not compelled to testify at all — to make any admissions whatever. And if he testified falsely in order to escape the punishment which the law fixes for the offense of rape, that is a matter for his conscience, but does not address itself, with any degree of consideration, to the conscience of a, court. The evidence ivas not objectionable on this account. — Seaborn v. The State, 20 Ala. 15; Bibb v. The State, 83 Ala. 84.

The stenographer’s report of defendant’s testimony 'taken by him ivas properly admitted in evidence if the corpas delicti ivas otherwise shown. — 1 Greenleaf on Ev. (16th ed.), §§ 439a, 439b, pp. 540, 541, 542, and notes 12 and 17; Mims v. Sturdivant, 36 Ala. 630; Acklin v. Hickman, 63 Ala. 494.

Was there evidence of the corpas delicti? It has been often decided by this court that the corpas delicti may be shown by circumstances. It need not be shown by direct, proof. There ivas an admission, made in open court by defendant that he had sexual intercourse with the gii*l, whom from the evidence had just about arrived a.t the age of puberty — that critical period when in, the process of nature' she ivas budding into, womanhoon — a, period perhaps, when she was more susceptible to the arts of the, seducer than; any other. Taking into consideration the age of the girl, the relation in which the defendant stood to her — her teacher; his act of selecting her for his special assistance in her studies, his .persuasive insinuation that he ivas her best friend; his fondling her hand; his declaration to her that she could trust him; his promise: and pledge, in: token of which he gave to-her “his right hand,” that he would not betray her; her innocence and ignorance of the. sexual relation, all of which the evidence tends to. establish, there can be little doubt that the question of the proof of the corpus delicti ivas for the, jury, and that it ivas sufficiently established to authorize the admission of defendant’s testimony on: his trial for rape.

In 2 McClain on Orim. Law it is said: “The exact manner or kind of seductive arts cannot be defined. Every case miist depend upon its own peculiar circumstances, together with the conditions in life, advantages, age and intelligence of the parties. So where it appeared that the prosecutrix was of tender years and under the protection of defendant, it ivas held that the circumstances themselves would tend to make qut a case of seduction.”

In Lybarger v. The State, 2 Wash. 562, it ivas said: “The jury heard the testimony, saw the witnesses on the stand, noted their manner of testifying, listened to the testimony concerning the age and experience .of the defendant and the tender age and want of experience1 of the female; the fact that she ivas under his roof, and to a certain extent under his protection; that she was just merging into womanhood and that she was at that critical age when judgment is weak and passion strong and when virtue falls an easy prey to the blandishments of the designing libertine — artifices and blandishments which, exercised upon: a woman of more mature years, would fall harmless. All these things the jury had a right to take into consideration.”

In State v. Fitzgerald, 63 Iowa, 268, the indictment charged that the defendant seduced the woman named in it by promising to give her presents if shei would'allow him to have sexual intercourse with her; that defendant. told her that there Avould be -n,o harm in her having sexual intercourse with him and that the same Avas not Avrong and could not hurt or injure; the female' being overcome by said false promises and said false statements and by reason thereof yielded to- defendant, etc. etc. The court said: “The defendant demurred to the indictment upon the ground that the facts charged did not constitute seduction and that it charged two offenses. The. demurrer Avas properly 0Arer-iTiled. There is no legal standard by Avhich to determine Avha.t false promises, artifices and deception are sufficient to constitute the • crime of seduction. Of course, mere. unla.Avful commerce for a consideration paid is mot seduction. There must be some artifice or false1 promise by which the virtuous female is induced to surrender her person to the accused. AVhat would be sufficient, to overpoAver the mind of one woman would be insufficient to lead a,Avay another of more mature mind and discretion. In this case, the defendant was a married man of about the age of fifty years and Nellie Ferree at the time of the alleged seduction was about twelve years old.”

In the 8th volume of the American. Criminal Law Reports, on pages 706 et seq., is to' be found a copious note on the subject of seduction. It is too- lengthy to incorporate the whole of it in this opinion. It is there said: “It is for the jury to say whether at the time, the woman was of chaste character, and whether arts were practiced and whether she was lured from the path of virtue and her reluctance to the sexual act overcome by these means. The means used are not material if the arts and persuasions were what caused her to' submit. * * The artifice or inducement need not have been concurrent Avith the acti of sexual intercourse. * * To constitute seduction there must have been submission; for if the offense was rape no conviction can be had for seduction. * * But to constitute rape, she must not have yielded at any stage of the act; she must have resisted, persisted in her determination and wish to resist and must have resisted to the utmost, except as she was overcome by fear of dangerous consequences or great bodily harm. * * Even where prosecutrix sAvears that defendant forced her, her statement is not conclusive upon this question.” “Actions speak louder than words”' is an old saying and seems to have been illustrated in the conduct of Pearl Pritchett on the occasion of the surrender of her chastity to defendant. — inconsistent with her statement that she Avas forced to commit the act of sexual intercourse. Her act in1 leaving the school room and going alone to1 the spot in the Avoods to which she was directed by defendant to1 go rather signifies one of two things; either that she did so solely to satiate her own passions or that she was influenced to go. for the purpose of having sexual intercourse with defendant after her passions had been aroused by him, by means of some art, deception or temptation practiced by him upon her. In Suther v. The State, 118 Ala. 88, the learned judge in the court below in Ips oral instructions to the jury said: “The seduction must be accomplished by means of temptation, deception, arts or flattery. * * Deception is the act of deceiving, the intentional misleading of another by falsehood spoken or acted. Temptation is that which tempts to evil; an evil enticement or allurement. Flattery is an effort to influence another’ by the use of false or excessive praise; iii.sincere complimentary language or conduct. Arts is the skillful and systematic arrangement or adaptation of means for the attainment of some desired end. The word “seduce” as found in the statute imports not only illicit intercourse, but also a surrender of the woman's chastity.” These definitions were approved by this court. And we may add that temptation can he by conduct or act — by suggestions of confidence and secrecy if they are believed, by the unmarried woman and she is induced thereby to surrender her chastity, this would he seduction. The arts of the seducer are crafty devices by words or acts or both, which influence the female to yield to sexual intercourse. It is sufficient if the intercourse was the result of the arts, or deception practiced. If her consent to engage in the act is attributable to the influence of the arts or deception practiced and the act follows as the result from the consent thus gained, this would he. seduction.

Many exceptions were reserved to portions of the general charge of the court designated in the record by the letters of the alphabet. Many of these; are without merit, while others were well taken. We shall only notice the latter. The first of these designated “dd” assumed that any word or act done by defendant for the purpose of enticing the girl to the doing of the sexual act amounted to a temptation. Whether they did or did not was a question for the jury.

“ff” was at! least misleading', if not a clear misstatement of the rule. To authorize a, jury to accept or re* ject any part of the evidence depends upon whether they believe it to be true or untrue, and not upon whether they believe the same to be just and right.

“gg” and “jj” Avas a charge upon the effect óf the evidence and, therefore, an irwasion of the province of the jury.

“kk” involved a suggestion to the jury, at least, that the judge thought that the act of the defendant in agreeing to work the example was to have Pearl alone with him to dally Avith her and excite in her evil thoughts, if it did not go to the extent of a, suggestion to the jury that they should find such to ha.ve been the fact. A similar fault may be found of “11” and “mm.”

“qq” was misleading perhaps- to the prejudice of defendant in not making mention of the girl’s testimony, which had some tendencies, if believed by the jury, that were favorable to defendant.

Written charge No. 12 requested by defendant should have been given. It was not misleading is the use of the word “voluntarily” in view of the tendency of some of the evidence that the sexual act Avas by force.

The other written charges refused to defendant Avere correctly refused. It avíÍI serve no good purpose, to-point out the vice of each of them. These are apparent AAdien they are read in the light of the evidence and the principles Ave have declared. Nor Avas there error1 in giving the Avritten charge's requested by the State.

Reversed and remanded.