Bryan v. State , 18 Ala. App. 199 ( 1921 )

MERRITT, J.

[1, 2] The appellant was convicted of having carnal knowledge of a girl over 12 years and under 16 years of age, and sentenced to the penitentiary for a term of 2 years. The indictment having been returned more than three years after the 1915 Act (Laws 1915, p. 137), amending section 7700 of the Code of 1907, became effective, it was not necessary for the indictment to allege the date of the commission of the offense charged, or that it was committed subsequent to the passage of this act. Nor was it necessary for the indictment to allege that the defendant was under 16 years of age, as this was a matter of defense. Miller v. State, 16 Ala. App. 534, 79 South. 315.

[3] Por aught that appears from the record, there was but one act of carnal knowledge; and it not clearly and positively appearing that there were two separate and different acts, the trial court will not be placed in error in refusing to exclude the testimony of Alberta Pranks on.the ground that the state had proven one act, and thereby elected to try the defendant for this particular act. As stated above, the testimony does not so identify and particularize the facts and circumstances, as that they could not, and in fact did not, relate to but one and the same criminal act.

[4] The trial court properly refused to permit evidence of the relationship of Alberta Pranks with other men. As stated in Martin v. State, 17 Ala. App. 73, 81 South. 851;

“The purpose of the statute * * * is to protect girls who are over the age of 12 years' and under 16, by absolutely prohibiting intercourse with them, and this without regard to their reputation for chastity or their status in society.”

[5, 6] There was no reversible error in sustaining the objections to the following question propounded to Alberta Pranks: “Did you ever tell George how old you were?” Of course the question as to whether prosecutrix was between 12 and 16 years of age was a subject of legitimate inquiry, but if witness had ever told George how old she was would appear to be wholly, immaterial. If it was intended to impeach the witness by showing that she had stated to George, on a particular occasion and time, that her age was different from what she had stated in this case, then the impeaching question should have been so framed.

[7-9] As affecting the credibility of a witness, it may always be shown under our statute that the witness has been convicted of some crime involving moral turpitude. The appellant insists that the trial court was in error in refusing to permit him to ask Alberta Pranks if she had not been convicted on a charge of vagrancy in Mississippi. Vagrancy under the law of Mississippi may or may not be a crime involving moral turpitude. Like our statute, there are many acts enumerated which, if found to pxist, will be held to constitute one a vagrant. Por instance, persons known as tramps and wandering about in idleness, who are able to work and have no property to support them, are classed as vagrants. And then every common prostitute is classed as a vagrant; yet it cannot be contended that the vagrant tramp is guilty of an offense involving moral turpitude, while it cannot be denied but that the vagrant common prostitute Is guilty of an offense involving moral turpitude. go to place the trial court in error in this ruling it was necessary for the defendant to have shown that the act characterized as vagrancy under the law would have been such an act as involved moral turpitude.

[10] It was immaterial as to what the reputation of Alberta Pranks was, either at the trial or previous thereto. Martin v. State, supra.

[11] The evidence was in conflict and the affirmative charge was therefore properly refused. Written charges C and E were covered by other given written charges.

[12] Written charges 1, 2, and 3 were properly refused, as the evidence was in conflict. Alberta Pranks was not an accomplice of the defendant; hence charge 5 was properly refused. Refused charges 6 and 9 were covered by the court’s oral charge, and were defective in not predicating the finding upon the evidence.

[13] Charge 7 is bad in that it predicates the finding on a part of the testimony without a consideration of all of it.

[14] Charge 10 is elliptical, in that there is a hiatus after the word “defendant’s.”

We find .no reversible error in the record, and the judgment appealed from must be affirmed.

Affirmed.

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