Hutto v. State

• Citation: 53 So. 809,169 Ala. 19
• Parties: HUTTO v. STATE.
• Decision Date: 06 July 1910
• Court: Supreme Court of Alabama

53 So. 809

169 Ala. 19

HUTTO v. STATE.

Supreme Court of Alabama

July 6, 1910

Rehearing Denied Dec. 22, 1910.

Appeal from Circuit Court, Henry County; W. L. Lee, Special Judge.

Ely Hutto was convicted of carnally knowing, or abusing in the attempt to carnally know, a girl under the age of 12 years and he appeals. Affirmed.

H. L Martin and J. A. Adams, for appellant.

Alexander M. Garber, Atty. Gen., for the State.

SAYRE J.

Appellant was tried and convicted under an indictment which charged that he did carnally know, or abuse in the attempt to carnally know, a girl under the age of 12 years. The evidence showed without conflict that there had been nothing more than the external contact of the sexual organ of the defendant with the private parts of the child--there had been no penetration. Nor had there been any abuse, as that statutory term has been defined by this court (Dawkins v State, 58 Ala. 376, 29 Am. Rep. 754)--no physical injury to the child's sexual organs. Under this evidence there could be no conviction of the offense charged. In an attempt to assert this proposition, as it seems, the defendant requested the court to instruct the jury that, if they believed the evidence, they would find the defendant not guilty. It is argued that the court's refusal was error.

The indictment in one alternative charged that the defendant did carnally know the child. Section 7315 of the Code of 1907 provides that, "when the indictment charges an offense of which there are different degrees, the jury may find the defendant not guilty of the degree charged, and guilty of any degree inferior thereto, or of an attempt to commit the offense charged." In Bolling v. State, 98 Ala. 80, 12 So. 782, the court, speaking through Stone, C.J., held that under an indictment for larceny from a storehouse, then a felony by statute without regard to the value of the property stolen, the defendant might be properly convicted of petit larceny. In Stone v. State, 115 Ala. 121, 22 So. 275, the defendant was indicted for larceny from the person, also a felony under the statute of that date without regard to the value of the property. The court held that the defendant could not be convicted of the petit larceny, overruling Bolling v. State. The court quoted so much of section 4482 of the Code of 1886, now section 7315 of the Code of 1907, as provided that, where one is indicted for an offense of which there are different degrees, the defendant might be convicted of any degree of the offense inferior thereto, and held that a conviction for petit larceny was unlawful, because the offense created by the statute was single and indivisible, involving in it no lower grade of offense, and because proof of petit larceny not from the person, under an indictment charging larceny from the person, would involve a variance.

It appears to us that an indictment charging carnal...