Opinion
3 Div. 386.
November 5, 1942. Rehearing Denied December 17, 1942.
Certiorari to Court of Appeals.
Petition of Paul Pugh for certiorari to the Court of Appeals to review and revise the judgment and decision of that Court in the case of Pugh v. State, 10 So.2d 833, wherein a judgment of conviction for having carnal knowledge of a girl over 12 and under 16 years of age was affirmed.
Writ denied.
The following charges were refused to defendant:
"12. The court charges the jury that proof of good character, if proved to your reasonable satisfaction, may be sufficient to authorize you to acquit the defendant, when taken in connection with all the other testimony."
"14. The court charges the jury that, as a matter of law, where there is no penetration of or injury to the sexual organs of the girl there can be no conviction of carnally knowing or abusing in attempt to carnally know a girl over twelve and under sixteen years of age."
H. C. Rankin, of Brewton, for petitioner.
Charge 14 should have been given. Montgomery v. State, 28 Ala. App. 442, 186 So. 589.
Wm. N. McQueen, Atty. Gen., opposed.
The indictment, trial and conviction were under the statute. Code 1940, T. 14, § 398.
The testimony set out by the Court of Appeals is in direct conflict on the fact as to whether defendant did or did not have sexual intercourse with the woman named in the indictment. She testified that he did have such intercourse with and abused her in the act. The defendant testified that he did not stay in the room with her or have anything to do with her during the night.
Charge 14 was not unlike charge number three approved in Sims v. State, 146 Ala. 109, 112, 41 So. 413, and it is insisted by appellant that refusing charge fourteen was reversible error. Under the contradiction in the evidence, which we have noted, the charge if not abstract was misleading. 64 Corpus Juris, p. 671, § 599.
The petition for certiorari is denied.
Writ denied.
GARDNER, C. J. and BROWN and LIVINGSTON, JJ., concur.
On Rehearing.
This court has frequently discussed requested charges as to proof of good character of a defendant. One of the latest cases in which the authorities are collected is Wilson v. State, ante, p. 1, 8 So.2d 422. 439. See also Taylor v. State, 149 Ala. 32, 42 So. 996.
We have again examined the oral charge of the court and are of the opinion that the jury were fully and fairly instructed as to the effect of evidence as to the good character of defendant, that when this evidence is taken and considered with all the other evidence in the case, it is sufficient to generate a reasonable doubt in the minds of the jury of defendant's guilt, and entitled him to a verdict of "not guilty" when but for this evidence of good character the jury would not have entertained such reasonable doubt of guilt.
It is unnecessary to discuss the many authorities cited by appellant's counsel in support of the application for rehearing. Suffice it to say, we have again carefully considered the case, and no other question is presented for decision in the application for rehearing.
Application for rehearing is, therefore, overruled.