Opinion
6 Div. 314.
June 19, 1928.
Appeal from Circuit Court, Winston County; R. L. Blanton, Judge.
Fletcher Baughn was convicted of having carnal knowledge of a girl over 12 and under 16 years of age, and he appeals. Reversed and remanded.
The indictment follows:
"The grand jury of said county charge that before the finding of this indictment Fletcher Baughn, whose name is to the grand jury otherwise unknown, a man, did have carnal knowledge of May Hopson a girl, over 12 years of age and under 16 years of age.
"Count 2. The grand jury of said county further charge that before the finding of this indictment, Fletcher Baughn, whose name is to the grand jury otherwise unknown, a man, did abuse May Hopson, a girl, over 12 and under 16 years of age, in the attempt to have carnal knowledge of her, against the peace and dignity of the state of Alabama."
These grounds of demurrer were interposed by defendant:
"(1) For that said count does not sufficiently state an offense.
"(2) For that said count does not negative the exception contained in the statute.
"(3) For that said count (is) drawn under a statute that does not apply to boys under 16 years of age, and this defendant says the indictment does not aver that he is over 16 years of age.
"(4) For that said count states the conclusion of the pleader and does not set out any facts constituting or showing in what the above consisted."
Charge 11, refused to defendant, is as follows:
"I charge you that if from all the evidence in this case, after you have considered same, you are satisfied that any witness in this case has proven to be of bad character, you may look to that fact in saying how much weight you will give to the testimony of such witness."
Defendant objected to remarks in argument of the solicitor to the effect that "defendant did not care any more for ruining that little girl than he did coming on the witness stand and swearing a lie, like he has done in this case."
J. J. Curtis and J. M. Pennington, both of Jasper, and Leo H. Pou, of Mobile, for appellant.
The indictment was demurrable. Code 1923, § 5411; 14 R. C. L. 189; State v. Conner, 142 N.C. 700, 55 S.E. 787; State v. Hamlett, 129 Mo. App. 70, 107 S.W. 1012; Stare v. Burton, 138 N.C. 575, 50 S.E. 214. Charge 11, refused to defendant, was correct and pertinent, and should have been given. 28 R. C. L. 657; Wise v. State, 19 Ala. App. 245, 96 So. 724. The argument of the solicitor was highly prejudicial, and should have been excluded. Guin v. State, 19 Ala. App. 67, 94 So. 788.
Charlie C. McCall, Atty. Gen., for the State.
Brief did not reach the Reporter.
The defendant's demurrer to the first count of the complaint was properly overruled. Pendley v. State, ante, p. 462, 116 So. 809.
In Ward v. State, 28 Ala. 53, it was held that in impeaching a witness the inquiry is not limited to general character for truth, but bad character generally may be proved as a fact going to his credibility. This ruling has been consistently followed since that time. Wise v. State, 19 Ala. App. 245, 96 So. 724; Wilson v. State, 20 Ala. App. 141, 101 So. 417. In this case there was much testimony impeaching the general bad character of the two principal state's witnesses. This affected their credibility as witnesses, and the defendant was entitled to the instruction as requested in his refused charge 11, and its refusal was error. 28 R. C. L. 657, § 242.
The defendant in his brief under proposition III insists that the court erred in refusing to give at the request of defendant a charge which is there copied. Upon investigation we find no such refused charge in the record, but we do find that this exact charge numbered 17 is marked given and signed by the judge. We do not think that counsel have intentionally attempted to mislead this court, but errors of this nature might tend to lead the court into error, if the brief is relied on for a true statement of the exceptions reserved as we might do in the absence of a brief from the Attorney General.
The excerpt from the argument of the solicitor to which exception was reserved, while inelegant and unparliamentary, is not such as will authorize a reversal.
For the error pointed out, the judgment is reversed and the cause is remanded.
Reversed and remanded.