Alexander v. State , 21 Ala. App. 497 ( 1926 )

Appellant was convicted of the offense of having carnal knowledge of a girl over 12 and under 16 years of age. He was given the minimum penalty prescribed by law.

Upon a careful reading of the testimony we find that a conviction of the defendant did depend upon the testimony of Freda Mae Kemp. It follows that, upon the authority of Dunn v. State, 19 Ala. App. 576, 99 So. 154, a case decided by this court, and the cases therein cited, it was prejudicial error to refuse to give defendant's requested written charge No. 3. We can see no distinguishing features between this charge, in so far as principle is concerned, and the charge held good in the said Dunn Case.

It was in our opinion altogether immaterial as to whether or not the act of sexual intercourse alleged to have been had was painful. Testimony as to this phase of the occurrence should not have been allowed. However, we would not be willing to reverse the case because of its admission, standing alone, since it might be fairly said to come within the scope or range of the res gestæ. Certainly it had to do with the res.

The other rulings complained of will not likely occur upon another trial. We do not think, anyway, they probably affected the verdict.

Reversed and remanded.