Opinion
4 Div. 71.
April 27, 1939.
Thos. S. Lawson, Atty. Gen., and Wm. H. Loeb and Edw. B. Crosland, Asst. Attys. Gen., for the motion.
The oral charge of the court covered every phase of the offense against defendant. It in nowise appears that any substantial injury resulted to accused from the refusal of his requested charge 2. Reversal may not be predicated upon a presumption of injury from error, but appellant must show probable injury. Slayton v. State, 234 Ala. 9, 173 So. 645; Supreme Court Rule, 175 Ala. XXI; Henderson v. Tennessee Coal Co., 190 Ala. 126, 67 So. 414.
Yarbrough Beck, of Enterprise, opposed.
Looking to the whole case, the refusal of charge 2 is not to be treated as harmless error under Rule 45. A man and woman merely having sexual intercourse pending an engagement to marry is not an offense as pronounced by Code, § 5490, and does not constitute seduction. Durrell v. State, 23 Ala. App. 307, 124 So. 665; Murphree v. State, 23 Ala. App. 39, 120 So. 305.
On the trial the defendant requested the following written charge: "(2) The court charges the jury that the mere fact that the defendant had sexual intercourse with Frances Hurst does not render the defendant guilty of seduction." The trial court refused this charge, and its refusal is the sole predicate for the reversal of the judgment of conviction by the Court of Appeals. The ruling of the Court of Appeals is supported by Murphree v. State, 23 Ala. App. 39, 120 So. 305.
The holding in the Murphree case is not approved.
The charge singles out and gives undue prominence to a single fact, is argumentative and possesses misleading tendencies, and was therefore properly refused. Brand v. State, 13 Ala. App. 390, 69 So. 379; Swint v. State, 154 Ala. 46, 45 So. 901; Brooks v. State, 8 Ala. App. 277, 62 So. 569; 6 Alabama Digest, Criminal Law, 811, page 807.
The writ of certiorari is therefor granted, the judgment of the Court of Appeals is reversed and the cause remanded to that Court for further consideration.
Writ of certiorari granted.
ANDERSON, C. J., and THOMAS, FOSTER, and KNIGHT, JJ., concur.
GARDNER and BOULDIN, JJ., dissent.