Turner v. State
Decision Date | 30 May 1961 |
Docket Number | 4 Div. 431 |
Citation | 131 So.2d 428,41 Ala.App. 310 |
Parties | James TURNER v. STATE. |
Court | Alabama Court of Appeals |
H. E. Lane, Enterprise, and Boswell & Smith, Geneva, for appellant.
MacDonald Gallion, Atty. Gen., and David W. Clark, Asst. Atty. Gen., for the State.
Turner has appealed from a judgment of guilt of carnal knowledge of a girl over twelve years old and under sixteen. The jury fixed the least permitted punishment, two years in the penitentiary.
The tendencies of the prosecution's evidence were sufficient to support the verdict.
Counsel for Turner argue three claims of error: (1) refusal of requested written charge 10; (2) refusal of requested written charge 20; and (3) the overruling of objection to the father of the girl testifying when she was born.
Charge 10 assertedly would go beyond simple assault and assault and battery as lesser offenses embraced by the charge so as to add also an indecent assault on a female. The oral charge stated:
1 (Italics added.)
No exception was taken to the oral charge but this would not be pertinent if indecent assault (if correctly presented in a requested written charge) is a separate crime from assault.
Turner contends charge 10 comes from the opinion in Hutto v. State, 169 Ala. 19, 53 So. 809, 810. The charge reads:
'Gentlemen of the Jury, I charge you that although you may not be satisfied from the evidence that the Defendant had carnal knowledge of [prosecutrix] or abused her in an attempt to carnally know her, that if you are satisfied from the evidence beyond all reasonable doubt that the Defendant took an indecent liberty with the person of [prosecutrix], you may convict him for an assault.'
The Hutto opinion says:
* * *'
This, we think, makes indecent assault merely one example of assault and battery in general.
Indecency is within the meaning of rudeness. Thus, in State v. Lawrence, 19 Neb. 307, 27 N.W. 126, 129, 'rudely and licentiously' in one section was equated with 'lewdly and lasciviously' in the following section. In Berkowitz v. Farrell, 19 Ala.App. 196, 95 So. 916, a civil action for assault and battery, Bricken, P. J., treated 'rude' and 'rough' as synonymous. See also Reeves v. State, 96 Ala. 33, 11 So. 296, 299 ( ).
Also, charge 10 is incomplete in that it mentions 'assault' whereas taking 'indecent liberties with the person' contemplates an assault and battery. 4 Am.Jur., Assault and Battery, § 27. We hold that the trial judge was right in refusing this charge.
The trial judge refused the defendant's requested charge 20 which reads:
'The Court charges you Gentlemen of the Jury if you are reasonably satisfied from the evidence in this case that [the prosecutrix] has been impeached, you may disregard her testimony.'
In support thereof appellant cites, without pointing out their application, the following authorities: Hammond v. State, 147 Ala. 79, 41 So. 761; Burkett v. State, 154 Ala. 19, 45 So. 682; Adams v. State, 175 Ala. 8, 57 So. 591; Ware v. State, 21 Ala.App. 407, 108 So. 645.
We cannot put the trial judge in error for the refusal of charge 20 because it neglects a most important aspect of impeachment of a witness, i. e., that the contradiction be upon a material matter. Fancher v. State, 217 Ala. 700, 117 So. 423.
The third contention would, in effect, elevate a birth certificate over the hand...
To continue reading
Request your trial-
K.M. v. Alabama Dept. of Youth Services
...the touching must be "rude or angry," this is not a narrow concept: "Indecency is within the meaning of rudeness." Turner v. State, 41 Ala.App. 310, 131 So.2d 428, 430 (1961); see also Surrency v. Harbison, 489 So.2d 1097, 1104 (Ala.1986) (quoting Singer Sewing Machine Co. v. Methvin, 184 A......
-
Bennett v. State, 6 Div. 855
...of another in rudeness or in anger is an assault and battery, and every assault and battery includes an assault.'' In Turner v. State, 41 Ala.App. 310, 131, So.2d 428, Judge Cates, now Presiding Judge Cates, said persuasively and in accord with other authorities that 'indecency' is within t......
-
McCoy v. McCoy
...satisfying the Court that such facts are not, indeed, true. In this regard, the Court cites with approval the case of Turner v. State, 41 Ala.App. 310, 131 So.2d 428 (1961), in which the Court ruled that the statute making a certified copy of a record in the custody of the Registrar of Vita......