Opinion
4 Div. 415.
December 11, 1928. Rehearing Denied January 22, 1929. Affirmed on Mandate May 21, 1929.
Appeal from Circuit Court, Coffee County, Enterprise Division; W. L. Parks, Judge.
Lenn, alias Leon, Watkins was convicted of seduction, and he appeals. Reversed and remanded.
Certiorari granted by Supreme Court in Watkins v. State, 219 Ala. 254, 122 So. 610.
Lee Tompkins, of Dothan, for appellant.
Counsel argue for error in the action of the trial court in allowing profert of the child, but without citing authorities.
Charlie C. McCall, Atty. Gen., and Sollie Sollie, of Ozark, for the State.
The profert of the child was admissible. Campbell v. State, 17 Ala. App. 424, 85 So. 589; 2 Ency. of Evi. 695; Whatley v. State, 209 Ala. 5, 96 So. 605; Shadix v. Brown, 216 Ala. 516, 113 So. 581.
Seduction. At the close of the defendant's testimony, the bill of exceptions recites: "The State in rebuttal offered the profert of the baby." (The italics are ours.) Proper objection was made and exception reserved. The conviction is sought to be sustained here on appeal on the principal that "profert of the child" is permissible in prosecutions for seduction, where intercourse between defendant and prosecutrix is denied, in order to show one very essential element of the offense charged — the act of intercourse. Even so, what baby?
Manifestly the baby must be identified as the one born of prosecutrix, and within the period of gestation from the time of the act for which defendant is being prosecuted. Here the baby, profert of which was allowed, was in no way described in the evidence. Whether it was the child of prosecutrix, and whether it was born before or after the time of the alleged seduction, nowhere is shown. In this state of the case, clearly it was error to overrule appellant's objection to its profert.
Reversed and remanded.
Affirmed on authority of Watkins v. State, 219 Ala. 254, 122 So. 610.