Turner v. State

Decision Date30 May 1961
Docket Number4 Div. 431
Citation131 So.2d 428,41 Ala.App. 310
PartiesJames TURNER v. STATE.
CourtAlabama 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.

CATES, Judge.

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:

'To constitute an assault there must be an intentional and unlawful offer to touch another in a rude or angry manner so as to create in the mind of the assaulted person a fear of a battery, coupled with an apparent ability to effectuate the attempt if not prevented. Now assault and battery, gentlemen, is the unlawful touching of the person of another by the aggressor himself or by some other substance put in motion by him. It must be done in a rude or angry manner; and every assault (sic) includes an assault and battery.' 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:

'* * * To take an indecent liberty with the person of a female without her consent is to commit an assault at the common law. What would amount to an assault, because done without her consent in the case of a female capable of consent, must be an assault in any case, because a child under the statutory age is deemed to be incapable of consent. Such an act must, in contemplation of law, be considered as having been done without her consent. * * *'

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 ('rude or indecent behavior': 'uncivil * * * offensive to modesty or delicacy').

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...

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3 cases
  • K.M. v. Alabama Dept. of Youth Services
    • United States
    • U.S. District Court — Middle District of Alabama
    • 9 Marzo 2005
    ...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
    • United States
    • Alabama Court of Criminal Appeals
    • 30 Marzo 1976
    ...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
    • United States
    • Alabama Supreme Court
    • 14 Julio 1989
    ...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......

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