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35 Ala. App. 511

49 So.2d 232

Waller v. State

Alabama Court of Appeals

Decided November 28, 1950

Alabama Court of Appeals · decided 1950-11-28

Key passage — most relied on by later courts

“The view to which this court long ago gave its approval, as stated, found its chief support in 3 Green, on Evi. § 214, where that learned author said: `The character of the prosecutrix for chastity may also be impeached; but this must be done by general evidence of her reputation in that respect, and not by evidence of particular instances of unchastity. Nor can she be interrogated as to a criminal connection with any other person, except as to her previous intercourse with the prisoner himself; nor is such evidence of other instances admissible.'”

quoted by 1 later decision, including 365 So. 2d 349 - Knox v. State

Relies on Woodson v. State · 33 Ala. App. 414 - Lovejoy v. State · Wesson v. State

Good law ✅— No negative treatment on recordhow we know

Decided 1950-11-28

How this case has been cited

Cited by 20 later decisions — most recently December 1978

20 state decisions

120195019601970decided

Later decisions citing this case, by decade. The current decade is in progress, and our corpus holds fewer opinions from the most recent years, so the latest bars are undercounted — not a real decline.

View the full empirical analysis of this case →

CARR, Judge.

¶1 The accused was tried and convicted on an indictment charging the offense of rape.

¶2 The defendant did not request the affirmative charge; neither did 'he file a motion for a new trial. In this state of the record the sufficiency of the evidence to sustain the judgment of conviction is not presented for our review. Woodson v. State, 170 Ala. 87, 54 So. 191; Williams v. State, 31 Ala.App. 48, 11 So.2d 870.

¶3 After the appellant had brought out portions of certain conversations, the State was permitted to inquire into other parts of the same conversations. This was not against the rule. Wesson v. State, 238 Ala. 399, 191 So. 249; Morrell v. State, Ala.App., 44 So.2d 278.

¶4 A witness who did not qualify as a medical expert was permitted, over timely objections, to state that he observed bruises and injuries on the body of the prosecutrix. The inquiry did not relate to matters which necessarily called for expert medical examination. The witness simply stated what he saw without any attempt to describe the physical effects of the injuries.

¶5 After the prosecutrix had testified, effort was made by the appellant to prove that her general character was bad. The court allowed this proof and correctly so. *513 He did not allow this inquiry to extend to particular instances of unchastity.

¶6 The rule is stated in Green v. State, 19 Ala.App. 239, 96 So. 651, 652: “The general character of the prosecutrix for chastity may also be impeached; but this must be done by general evidence, and not by particular instances of unchastity, nor as to a criminal intimacy with any other person.”

¶7 It should be noted that this doctrine applies when the question of consent becomes a factual issue. Stone v. State, 243 Ala. 605, 11 So.2d 386; Story v. State, 178 Ala. 98, 59 So. 480; Herndon v. State, 2 Ala.App. 118, 56 So. 85.

¶8 Refused charge numbered 1 is abstract. The question of the consent of the prosecutrix did not enter the factual issues in the case.

¶9 Written instructions numbered 2 and 3 were substantially covered by the court’s oral charge. Title 7, Sec. 273, Code 1940.

¶10 Counsel for appellant interposed an exception to what he contended was an omission in the court’s oral charge. Matters of this kind cannot be raised by this method. Counsel should have tendered a written instruction covering the omitted principle. Davis v. State, 246 Ala. 101, 19 So.2d 358; Lovejoy v. State, 33 Ala.App. 414, 34 So.2d 692.

¶11 We have responded to each question which is properly presented for our review and which in our opinion merits comment.

¶12 Some of the objections are only based on general grounds. On several occasions when the court ruled against the objections of appellant’s counsel, no exceptions were reserved. Johnston v. Isley, 240 Ala. 217, 198 So. 348; Brannon v. State, 16 Ala.App. 259, 76 So. 991; Bennett v. State, 248 Ala. 664, 29 So.2d 217; Martin v. State, 34 Ala.App. 476, 41 So.2d 440.

¶13 It is ordered that the judgment of the court below be affirmed.

¶14 Affirmed.

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