Opinion
6 Div. 300.
December 12, 1972. Rehearing Denied January 23, 1973.
Appeal from the Circuit Court, Jefferson County, Joseph J. Jasper, J.
McCollough, McCollough Callahan, Birmingham, for appellant.
It is error to permit the State, by direct testimony or innuendo and insinuation, to bolster its witnesses with evidence, direct or indirect, of prior extrajudicial statements consistent with their testimony at trial. Dredd v. State, 26 Ala. App. 594, 164 So. 309; James v. State, 115 Ala. 83, 22 So. 565; Jones v. State, 107 Ala. 93, 18 So. 237; Pope v. State, 251 Ala. 286, 36 So.2d 899; Moore v. State, 30 Ala. App. 552, 9 So.2d 146; Green v. State, 96 Ala. 29, 11 So. 478; Childs v. State, 55 Ala. 25. It is error for the trial court, in explaining or commenting upon written charges given at the request of defendant, to thereby qualify, limit or modify such charge, or to incorrectly state the law with respect thereto. Dickey v. State, 21 Ala. App. 644, 111 So. 426; Harris v. State, 24 Ala. App. 59, 129 So. 795; Bailum v. State, 17 Ala. App. 679, 88 So. 200. In a prosecution for indecent molestation of a male under sixteen, a conviction may not be had upon the testimony of a fourteen year old pathic who willingly participated in the act, where such testimony is corroborated only by the testimony of another fourteen year old boy who took the pathic to the defendant's apartment, introduced the pathic to the defendant, sat on the bed with the pathic and the defendant as the act was committed, and then himself engaged in a similar act with the defendant. LaBryer v. State, 45 Ala. App. 33, 222 So.2d 361; Leonard v. State, 43 Ala. App. 454, 192 So.2d 461. Stokely v. State, 254 Ala. 534, 49 So.2d 284; Strange v. State, 43 Ala. App. 599, 197 So.2d 437.
William J. Baxley, Atty. Gen., and Samuel L. Adams, Asst. Atty. Gen., for the State.
The State may prove on direct examination that a rape victim made a complaint of the incident. Aaron v. State, 273 Ala. 337, 139 So.2d 309; Smith v. State, 47 Ala. 540; Price v. State, 41 Ala. App. 239, 128 So.2d 109. An additional oral charge by a trial court of a correct statement of law after the defendant's requested charges are given is not error on the part of the trial court. Richardson v. State, 54 Ala. 158; Dutton v. State, 25 Ala. App. 472, 148 So. 876. In a prosecution for incest the prosecutrix who is under the age of consent is not an accomplice within the meaning of Title 15, Section 307, Code of Alabama 1940 (Recompiled 1958). Duncan v. State, 20 Ala. App. 209, 101 So. 472; Noble v. State, 253 Ala. 519, 45 So.2d 857.
Indecent molestation of a child under the age of 16: sentence, five years in the penitentiary. Michie's Code, T. 14, § 326(2) as amended.
I
Appellant's first claim of error is that the trial court erred in allowing (over objection) a policewoman to testify that she went to see the defendant and other persons. The State in effect, appellant argues, was trying to bolster the testimony of its other witnesses.
The State contends, however, that this is no so; that the purpose of the testimony was to show an early complaint by the child and the ensuing investigation.
Since nothing in the nature of an inculpatory admission or prejudicial conduct came out in this testimony, we consider this evidence altogether harmless. Supreme Court Rule 45.
II
The trial judge gave one of the defendant's written requested charges and thereafter added, on his own, "Consent has nothing to do with it. A child under the age of 16 is incapable of giving his or her consent." To this remark no exception was taken. Hence, there is no matter reserved for our consideration. See Hubbard v. State, 283 Ala. 183, 215 So.2d 261.
III
The third point raised by appellant is a claim that the testimony of the victim of this crime is required to be corroborated and that another boy who was present on two occasions was, in effect, another accomplice of the defendant.
This construction of § 307, T. 15, 1940 Code, is impermissible. The statute about child molestation, very much like the statutes against carnal knowledge of girls under the age of consent, is directed at acts toward children and not at acts participated in by two persons, as in the case of say, sodomy, as illustrated in LaBryer v. State, 45 Ala. App. 33, 222 So.2d 361.
In a case involving this selfsame statute, Alldredge v. State, 45 Ala. App. 171, 227 So.2d 803, this Court said:
"No requirement of corroboration is presented in this record. Blocker v. State, 40 Ala. App. 658, 120 So.2d 924."
Having considered the entire record under T. 15, § 389, Code 1940, we are of the conclusion that the judgment below is due to be
Affirmed.
All the Judges concur.