On Rehearing. We are unable to accord to the insistence of the State, on its application for rehearing, to the effect that the refusal by the trial court of the several written charges hereinabove referred to should be sustained, for that, said charges were "fairly and substantially" covered by the oral charge of the court and by the charges given at request of the defendant. It affirmatively appears to the contrary and this insistence is untenable.
As to the oral charge of the court, it would require a strained construction thereof to hold that the brief and cursory statement (only) made by the court had any tendency to "fairly and substantially" cover the principles of law contained in the refused written charges under discussion. The only utterance of the court having reference to the questions here involved, was as follows: "Gentlemen of the Jury, the law says that where two parties are present at the commission of a crime and one aids or assists or abets the other in the committing of the crime he is guilty of the crime himself. In other words, a person who aids, assists or abets, under our law is as guilty as the principal."
As insisted by able counsel for appellant: "Charges 11, 12 and 13 neither one makes any reference at all to the law as related to principal and accessory, and have nothing whatever to do with the law in relation to such a situation. Charge 16 simply states that to convict on the theory of aiding or abetting the burden rests upon the State to prove something more than the mere presence of the defendant at the commission of the offense. This charge does not deal with the measure of proof, nor has it any relation whatever as to the effect of a reasonable doubt, as to the question or fact of aiding and abetting."
Without reference as to "the theory upon which this case was tried" in the lower court, the defendant, Curtis Daniel, stoutly maintained throughout the trial that he was wholly innocent of the crime charged against him, and that he had never at any *Page 115 time laid his hands on the woman in question. He did testify: "I know Mrs. Wright and have known her between two and three years, that Sunday morning that me and Fletcher Clayton were up at her house I did not abuse that woman in any way, I did not put my hands on her, did not touch her, I did not force her to submit to any improper conduct, I did not have intercourse with her, I did not have anything to do with Fletcher having an intercourse with her. Me and Fletcher never mentioned anything about having intercourse with her before we got there, I did not have any part in what Fletcher did there on that occasion. We got there between six and seven o'clock, I didn't have a watch, I would guess about seven. I was driving when we reached that place. * * Clayton got out and I did not see him any more after he went in the house before I left, Whit Wright came out of the house, I had not heard a conversation between Fletcher and Whit in the house. Whit came out and I carried him to the Gulf plant, Whit told me to do this. * * * I carried him to the Gulf plant, Whit got out of the automobile there and I turned around and went back up the highway * * * and drove back up there and into the back yard. * * * The Wright children came out there and got in the car, I sat there in the car with the children two or there minutes. * * * I got out of the car before Fletcher came out of the house, I went upon the porch and looked in the door, I saw Fletcher and this woman on the mattress and he was on top of her. * * * They did not see me, I slipped up there on the porch and watched them there from three to five minutes on that mattress, I left the children in the car, I slipped away without them knowing that I was there and eased down in the car. I didn't tell Fletcher that I saw him until after we left there, I said, 'well, you didn't know I was there but I slipped up and watched you.' I don't know that we laughed much, he looked surprised. * * * When Fletcher came out of the house I was sitting in the car. I then got out of the car, went to the house, started in, I got in the first room, this lady was in the door going into the next room, I saw her there, * * * she threatened to hit me with the broom, she reached and got the broom and I got out and got in the car and left there. * * * When this woman told me to get out of the house, she said that she would tell Whit if I didn't. I said 'well, now if you want to start telling something, I saw something and I can tell something too,' that was when she reached for the broom and I went out of the house."
The testimony of the other defendant was of like import, except that he readily admitted having intercourse with the woman to which she consented that he used no force of any kind.
It was the theory of the defendants that the woman made complaint to her husband in order to forestall the intimation made by Daniel that he would tell what he saw her doing.
All this, of course, was for the jury to determine primarily and for the trial judge to weigh and consider on the motion for a new trial; and in this connection the court should have considered the testimony of the doctor (State witness) who at the request of the Sheriff made a minute examination of the alleged injured party a very short time after the alleged commission of the offense. He found her calm and collected, not even excited, as testified to by Dr. Campbell, and hereinabove quoted at length.
In a prosecution for rape (a capital offense) it is essential for the jury to be exceedingly cautious how they convict a defendant on the uncorroborated testimony of the prosecutrix, for the experience of the courts has amply attested the assertion of Lord Hale (many times cited and quoted) "that the charge of rape is 'an accusation easy to make and hard to be proved, and harder still to be defended by the party accused though ever so innocent.' " Barnett v. State, 83 Ala. 40, 45,3 So. 612, 615.
From the facts and circumstances of this case, unusual and almost without parallel, this court adheres to the firm opinion that these two appellants should be accorded another trial, so that they may have a fair and impartial trial free of prejudice and error such as the law not only provides but also contemplates. Such a trial is not shown by this record, and, as stated, for the errors indicated, including the action of the trial court in overruling the motion for a new trial, the order and judgment heretofore made and announced will stand undisturbed.
Application for rehearing overruled. *Page 116