Murphy v. State

CATES, Judge. Murphy was convicted of rape and sentenced to the penitentiary for ten years. He makes but a single claim of error, that is, the refusal of the trial judge to permit the defense, on cross examining the prosecutrix, to show that she wrote a number of letters to another man. On the State’s objecting, defense counsel wished [218] to question her as to the letters on the theory that "she is accusing this man here [Murphy] to cover up acts of intimacy with this other man.” The trial judge sustained the State’s objection, relying on Story v. State, 178 Ala. 98, 59 So. 480, which stands for the principle that, though the woman’s lewd repute is relevant to a charge of rape, particular acts of intimacy with other men are not. Anno. 140 A.L.R. 364, at 380, et seq.; Wigmore, Eyidence (3rd Ed.), § 200. No request that the court reporter mark these for identification appears in the record, nor was there any request to read them into the record outside the hearing of the jury. After the court reporter certified the evidence, defense counsel filed five written objections. Letters, which Murphy’s counsel offered, were shown on the trial not to have been marked as exhibits nor copied into nor appended to the transcript. The trial judge (Michie’s 1958 Code, T. 7, § 827(la)) heard the objections and took evidence. He endorsed his denial on the reverse of the last page of the evidence. We hold this action reviewable in a criminal cause without formal assignment of error because § 827(la) fails to exclude § 389 of T. 15. These letters have been exhibited to us in brief of counsel. Under the rule in Story v. State, supra, Stone v. State, 243 Ala. 605, 11 So.2d 386, Waller v. State, 35 Ala.App. 511, 49 So.2d 232, and Smith v. State, 40 Ala.App. 393, 114 So.2d 295, there was no error in excluding them from evidence. The prosecutrix was not first asked whether or not she was biased toward Murphy. In Slagle v. State, 39 Ala.App. 691, 108 So.2d 180, this court, per Harwood, P. J., said: “Where bias is admitted, it is not permissible to go further and show the cause of such bias and the details of the causes for such feelings. This for the reason that multiplication of issues is always undesirable. Tuggle v. State, 19 Ala.App. 541, 98 So. 815; King v. State, 23 Ala.App. 572,129 So. 316. As stated by De Graffeinried, J., in Allen v. Fincher, 187 Ala. 599, 65 So. 946, 948, if bias is admitted, ‘then there should, at once, be an end of the matter.’ ” This absence of a preliminary enquiry as to bias would, from the rule in Story v. State, supra, keep a line of questions as to the letters from being relevant. Melvin v. State, 32 Ala.App. 10, 21 So.2d 277. Moreover, in view of the stated purpose of the letters being tendered in order to unmask a purported diversion from her romance with another man, we consider this limitation equally as confining to preclude the letters from serving another purpose (i. e., bias) as though they had been offered without a stated purpose: “ * * * It is argued by appellant that he was entitled to elicit answers to these questions in order to show bias or interest of the witness. Such testimony was not offered specifically for the stated purpose, and it is not reversible error either to admit or reject evidence offered generally when admissible for a certain purpose only, without calling attention of the trial court to such purpose. * * * ” Simpson, J., in Garrett v. State, 268 Ala. 299, 105 So.2d 541. See also Thompson v. Drake, 32 Ala. 99, and Melvin v. State, supra. We have carefully examined the entire record under Code 1940, T. 15, § 389, and consider that the judgment below is due to be Affirmed.