#### Roberts *v.*The State.

*Indictment for Rape.*

3. *Witness; when rule of exclusion applicable to expert witness.*Where, upon entering upon the trial of a case, the witnesses are put under the rule,' an expert witness is within such rule during the examination of other witnesses on matters for which he is called.

2. *Rape; admissibility of evidence.*— On a trial under an indictment for rape, prosecutrix testified that the rape was committed in a pasture about 45 yards from a large pine tree, and about 80 yards from a cornfield, and about 35 yards from a branch. A witness testified that three or four weeks after the alleged rape, in the pasture in question, he saw tracks of a man with shoes, and of hare feet, like those of a girl, leading into some bushes, where 'there were signs of a “scuffle,” but that it was not near a large pine tree, and the place was about thirty steps from the cornfield, and about 15 yards from the branch. *Held:*that since the distances testified to by the two witnesses were merely their estimates or opinions, the identification of the place was otherwise sufficient to render the evidence of the signs of the scuffle admissible.

3. *Same; unauthorized argument of counsel.*— On a trial under an indictment for rape, where the prosecutrix testified that the clothes worn by her at the time of the commission of the alleged offense showed indications of rough treatment, and other signs that would indicate the commission of the offense, it is not incumbent upon the State to introduce such clothing; and an argument of the attorney for the defendant, based on the failure to produce the clothing referred to by the prosecutrix is properly arrested by the court.

4. *Same; same.*— In such a case, Where the prosecutrix testified that some time prior to the alleged rape the accused had asked her to kiss him, and being refused, told her that, if she told her father, accused would kill both her and her father, and that she did not tell, it was not error to refuse to exclude an argument by the State’s solicitor that no one knew better than accused that she had not told; since it was but the expression of his opinion.

*485. *Criminal law; reasonable doubt.*— A mere doubt, however honestly entertained by a jury, is not sufficient to authorize the acquittal of a defendant in a criminal case, but there must be a reasonable doubt; and a charge which instructs the jury that they must acquit the defendant, if after considering all the evidence they have a doubt as to his guilt, is incorrect and is properly refused.

6. *Rape; charge as to conflict in prosecutrix’s testimony.*— On a trial under an indictment for rape, where it is shown that the prosecutrix on the preliminary trial of the defendant, placed the time of the alleged commission of the offense between 8 and 9 o’clock in the morning, and on the pending trial she testified that the time was between 7 and 8 o’clock, a charge which instructs the jury that this conflict in her testimony may be considered by the jury in determining what weight they will give to her testimony, asserts a correct proposition and should be given.

Appeal from the Circuit Court of Pike.

Tried before tlie Hon. J. W. Poster.

The appellant, Marion Roberts, was indicted, tried and convicted for forcibly ravishing one Annie Hattoway.

On the trial of the case, after the said. Annie Hattoway had testified to the facts attending the commission of the offense, she further testified that the place Avhere the defendant threw her down and ravished her was in a pasture near her father’s house; that it ivas a smooth place in some bushes and Aims sandy, but the sand was not perfectly white; that it was about 45 feet from a large pine tree that had been killed by lightning, about 80 yards from a corn field in “the bottom adjoining the pasture,” the bushes were thick there, and it Avas in the southeast corner of the pasture, about 35 yards from a branch, and from 3Ó to 50 yards from an oat field. The said Annie HattoAvay further testified tliat at the time she Avas ravished by the defendant she had on an undergarment and a dress; and that'during the afternoon of the day the offense Avas committed, she noticed that her undergarment had blood on it, both in front and behind. When asked about Avhat time of the day she Avas assaulted by the defendant, she testified, that it Avas between 7 and 8 *49o’clock in the morning. During ber cross-examination she stated that she testified on the preliminary trial and on the *habeas corpus*proceedings, that it was between 8 and 9 o’clock in the morning; but that she was now sure it was between 7 and 8 o’clock; that she had changed the designation of the timé, because after the other trials she was informed that the time was an important matter in the case; and after thinking it over, she was sure it was between 7 and 8 o’clock.

Upon the cross-examination of one Ben Blackman, a witness for the defendant, he testified that about three or four Aveeks after the day the defendant was charged with having raped Annie Hattoway, he Avas passing through Mr. HattoAAray’s pasture, and made an examination to see if he could find the place of the alleged rape; that in one place in the pasture he saAV tracks of a man with shoes and of bare feet like the tracks of a girl, that thereupon he followed these tracks in some bushes, where he saw signs as if there had been a struggle or “scuffle,” but that he did not see near there a large pine tree, killed by lightning. On the re-direct examination of this Avitness by the defendant, he Avas asked, “How far is this place you refer to, from the corn field?” He answered that it Avas about thirty steps, and in ansAver to a question as to hoAV far it was from the branch, he said it was about 15 yards. The defendant then moved the court to exclude the testimony of this Avitness as to any signs of a struggle or a “scuffle” at the place referred to by him in the pasture, on the ground that the place referred to by the witness is not sufficiently identified as being the place where the alleged rape Avas committed, as described by the Avitness Annie HattoAvay. The court overruled this motion, and the defendant duly excepted.

During the re-examination of the witness Annie HattOAvay, she testified that sometime before the defendant raped her, he came to the cow-pen one day while she Avas milking; and asked her to kiss him; that she refused, and the defendant told her that if she told her father, he, the defendant, Avould kill her and her father, both; and that she did not tell her father about the defendant asking her to kiss him, until the Sunday morning after the commission of the rape, Avhich was on Thursday,

*50In the course of his argument to the jury, one of the defendant’s attorneys said: “Annie Iiattoway says her undergarment worn that 5th day of May [the day of the alleged rape] had blood on it, .behind and in front. Where are those clothes, gentlemen of the jury? Why was not that garment here as evidence in this case?” The solicitor objected to these remarks by the defendant’s counsel, and moved the court to exclude them from the jury, on the ground that they were illegal. The court sustained the objection, granted the motion, and excluded said remarks from the jury. To this action of the court, the defendant duly excepted.

In his closing argument to the jury, the solicitor used the following language: “The circumstances and testimony in the case ghow that no one - knew bettor' than Roberts, that she, Annie Hattoway, had not told her father, because they had been friends since Roberts asked her to kiss him, on up to the time of the alleged rape. Defendant knew he had this girl Annie Hattoway in his power. He had asked her two months before this, at the cow-pen to kiss him, and he told her there if she told her father he would kill her. She did not tell her father about defendant’s talk at the cow pen. (And no one knew better than Marion Roberts, the defendant, that Annie Hattoway had not told her father about this kissing talk, at the cow pen.)” The defendant objected to that part of the solicitor’s argument in parentheses, aud moved the court to exclude it from the jury, on the ground that the same was illegal, since there was no evidence introduced to show whether the defendant lcneAV that Annie Hattoway had or had not told her father about the incident referred to. The court overruled the objection and motion, and to this ruling the defendant duly excepted.

The defendant requested the court to give to the jury the following Avritten charges, and separately excepted to the court’s refusal to give each of them as asked: (9.) “If the jury, after considering all the evidence in the case, have a doubt as to the guilt of the defendant, they must acquit the defendant.” (19.) “If a single juror has a doubt of the guilt of defendant, for Avhich he can give a reason, there can be no conviction.” (22.) “The *51court charges the jury that if they believe from all the evidence in the case that Annie Hattoway delayed five • days in making complaint to any one of the alleged rape on her, then they may, under the laAv, disbelieve her entire testimony.” (24.) “The fact, if it be a fact, that the prosecutrix placed the time of the alleged commission of the offense between eight and nine o’clock in the morning on the preliminary trial of the case, and that she noAV changes the time to between seven and eight o’clock in the morning, may be considered by the jury in determining Avhat weight they will give to her testimony.”

S. M. Dinkins and L. D. Gardner, for appellant.

— Dr.' W, B. Sanders should have been alloAved to testify. He was offered strictly as an expert, and defendant’s counsel so stated to the court at the time. Experts, called as such, are exempt from the rule of exclusion. — 8 Encyc. of Plea. & Prac., 782; Greenleaf on Evidence, (15th ed.) § 432, note.

The testimony of the Avitness Blackman, which Avas objected to by the defendant, should have been excluded. There was not sufficient identification of the place referred to in his testimony and that referred to by the prosecutrix to authorize an admission of his testimony. *Barnes v. State,*88 Ala. 204.

The rulings of the court upon the argument of counsel was erroneous. — 2 Encyc. of PI. & Prac. 714,.722; *Green v. State,*97 Ala. 59; *Cross v. State,*08 Ala. 476.

Chas. G. BitOAArN, Attorney-General, for the State.

The charges requested by the defendant and refused by the court should have been given.' — -11 Encyc. Plead. & Prac. 299, and note; *Smith v. State,*92 Ala. 30; *Smith v. State,*88 Ala. 73; *Harris v. State,*96 Ala. 24. The testimony of the Avitness Blackman Avas properly *admitted.*— Alsabrooks *v. State,*52 Ala. 124. The ruling of the court on comment of the counsel for defendant on failure of the State to have the garments Avorn by the prosecutrix in evidence, AAras free from *error.*— Crawford *v. State,*112 Ala. 1; *Bates v. Morris,*101 Ala, 282; *Jaclc$oii v. State,*77 Ala. 18.

*52The statement made by the solicitor to the jury is so manifestly his opinion based on a legitimate argument of the facts that it is deemed unnecessary to discuss the *point.*— Cunningham *v. State,*117 Ala. 59; *Pickens v. State,*115 Ala. 42; *Rogers v. State,*117 Ala. 192; *Scaly r. State,*96 Ala. 69.'

DOWDELL, J.

— The defendant was tried and convicted on an indictment for forcibly ravishing one Annie IlattoAvay. Before entering npon the trial the Avitnesses were put under the rule, both State and defendant having invoked the same. W. B. Sanders, a physician, and a Avitness for the defendant, in violation of the rule of exclusion, remained in the court room during the trial, and heard a part of the testimony of one Dr. Pennington, Avho Avas examined as an expert on behalf of the State. On the objection of the State, the court refused to let the witness Dr. Sanders testify. It was stated at the time by the defendant that Dr. Sanders Avas only offered as an expert. Tavo other Avitnesses, physicians, Avere called and examined as experts by defendant in his behalf. It is contended by counsel for defendant that the court erred in not allowing the witness Sanders to testify, because, as it is urged., expert testimony does not fall within the rule of exclusion of Avitnesses. As to AAhat AA'itness or witnesses may be excludedfromtlieruleAvhen invoked is a matter resting in the sound discretion of the trial court; and its rulings in this respect are not subject to *revision.*— Riley *v. State,*88 Ala. 193; *Berry v. State,*88 Ala. 204; *State v. Brookshire,*2 Ala. 303.

In the note to section 432 Greenleaf on Evidence (15th ed.) it is said: “To this rule, an exception is allowed in the case of medical Avitnesses; but even those, on matters of medical opinion, are examined apart from each other,” citing Alison’s Practice, pp. 542-5; Tait on Ev. 420.

It will be observed that under these authorities, the AA’itness is not excepted from the rule of exclusion, during the examination of other Avitnesses on the matters for which he is called. Sanders Avas called as an expert, on the same matters other witnesses were called and examined. So it would seem that under the above *53authority cited in appellant’s brief, the witness falls within the rule and not the exception, according to the facts in this case.

There is no good reason why witnesses summoned to testify as experts, should be placed upon a higher plane than other Avitnesses, especially as to the matters they are called to testify about. The manifest purpose of the rule is to secure the truth and promote the ends of justice, to have the recollection of the individual witness, of the facts, which he may testify to, uninfluenced by the testimony of other Avitnesses, or in the case of experts, the opinion of the expert, uninfluenced by evidence of another expert. The discretion of the trial court in such cases, is a Avise discretion, and always to be exercised for the promotion, and never at the expense of right and justice.

The distances testified to by the íavo Avitnesses Annie RattoAvay and Blackman were merely estimates or opinions of the Avitnesses, and we think that the other matters of description taken in connection with the two sets of tracks as described by the latter Avitness, leading up to the place where he saAv signs of a “scuffle” on the ground, sufficiently identified the place to render the testimony of this Avitness competent.

It Avas not incumbent on the State to produce at the trial the under-garment, on which, the Avitness Annie Hattoway stated Avas blood in front and behind, and the failure to do so could afford no presumption unfavorable to the prosecution under the facts in the case. The action of the court in arresting the argument of counsel on this line was Avithout error.

What the solicitor said in the course of his argument as to no one knowing better than the defendant, that Annie Hattoway had not told her father about the kissing talk at the coav pen, was but the expression of opinion by the solicitor, and under the testimony of the case, we would not say it Avas a wholly umvarranted opinion. The court did not err in refusing to exclude these remarks of the solicitor.

A mere doubt however honestly entertained is not enough upon Avhich to base an acquittal. Nor is a doubt *54*for*which a reason may be given necessarily a reasonable doubt, although a reasonable doubt may be a doubt lor which a reason can be *assigned.*— Humbree *v. State,*81 Ala. 67. The written charges requested by the defendant and numbered 9 and 19 fall under the above propositions, and were properly refused.

Charge numbered 22 is conceded by counsel for appellant in their brief to be bad.

Charge 24 was not offensive to the rule against giving-undue prominence to particular parts of the evidence, but comes within the exception to that rule as laid down in the cases of *Harris v. State,*96 Ala. 24, and *Smith v. State,*88 Ala. 73. It was error to refuse this charge.

For the errors pointed out the judgment of the circuit court is reversed and the cause remanded. The defendant will remain in custody until discharged by law.