Castleberry v. State , 135 Ala. 24 ( 1902 )

HARALSON, J.

1. The defendant was'asked by the solicitor on his cross-examination, “llave you ever been convicted of any crime?” which question was objected to by the defendant as being incompetent. The court overruled the objection, and the witness answered, that ho had been convicted for fighting. The question asked was not subject to the general objection made to it; for, while it was capable of eliciting evidence for conviction of an offense which, under the statute, did not go to the competency or credibility of the witness, it was also capable of eliciting evidence which did go to his competency or credibility. The objection to the question, therefore, should have been specific, limiting the inquiry to evidence of an offense of the latter class.—Code, § 1795; Coghill v. Kennedy, 119 Ala. 641, 662.

2. There was no error in allowing the witness, Doo-lie» Bradley, upon whom the offense was alleged to have been committed, to be sworn and examined as a witness, on account of her tender years. She testified that she was eight years old, and on her examination, under the direction of the court, she exhibited such a degree of intelligence and understanding of the nature of an oath, that the court ruled she was competent, and in this, there does not appear there was an abuse of its discretion in such a case.—Carter v. State, 63 Ala. 52; Beason v. State, 72 Ala. 191; McGuff v. State, 88 Ala. 147.

3. It is settled, that the word “abuse” in the statute (Code, § 5447), punishing carnal knowledge, or abuse in attempting to have carnal knowledge of any female under fourteen years of age, must he limited in its meaning to injuries to the genital or sexual organs, and that ¿n injury to these parts, in the attempt at carnal knowledge, is the only abuse to which the statute refers, and not to other forcible or wrongful ill usage which would be an element of the offense of an assault with intent to ravish or other assault, subject to different punishment under other statutes.—Dawkins v. State, 58 Ala. 376.

4. There was no evidence on the part of the State that the girl was abused by defendant in the statutory sense, and on his part, that he was not guilty of attempting to have carnal knowledge of her, and did not abuse her in any respect. There was, therefore, no room for the general charge as requested by defendant. Charge 1 was properly refused. The word “hurting,” as employed in the charge, may include abuse of the sexual parts.

The other charges ivequested by defendant each sought to prohibit a conviction except when it was shown that the private parts of the child were bruised, cut, lacerated or torn; but the mere hurting of the private parts, short of either of these conditions, may constitute abuse within the meaning of .the statute. For this reason the charges were properly refused.

Affirmed.