Jackson v. State, 4 Div. 370.
Decision Date | 14 May 1985 |
Docket Number | 4 Div. 370. |
Citation | 471 So.2d 516 |
Parties | Sonny JACKSON v. STATE. |
Court | Alabama Court of Criminal Appeals |
W. Terry Bullard of Bullard, Ward & Thomas, Dothan, for appellant.
Charles A. Graddick, Atty. Gen., and Phillip Luke Hughes, Asst. Atty. Gen., for appellee.
A jury found this appellant guilty of rape in the first degree as charged in an indictment that he, being a male 16 years of age or older engaged in sexual intercourse with a female who at the time was less than 12 years old, which crime is proscribed by Alabama Criminal Code, § 13A-6-61(a)(3), and is classified as a Class A felony. He was duly adjudged guilty and sentenced by the court to imprisonment for twenty-five years.
In the brief of counsel for appellant only two issues are presented, which we now consider.
Appellant urges that the trial court erred in not granting the defendant's motion to exclude the State's evidence on the ground that "the State failed to prove penetration as required by Section 13A-6-60(1) and Section 13A-6-61(3)." Appellant is correct in his contention that penetration by the male sexual organ into the sexual organ of a female must be shown in order to sustain a conviction of rape as charged in the indictment. There is no need to recite the large number of authorities that have so held. The nine-year-old victim in the case testified on call of the State. The factual contention of appellant is definitely refuted by the following testimony of the victim, as to which there was never any retraction:
We are unable to determine appellant's first issue in appellant's favor.
By the only other issue presented in appellant's brief, an attempt is made to persuade us that the trial court was in error "in allowing the State to attempt to prove the age of the defendant through hearsay testimony." The contention is directed at that part of the testimony of Deputy Sheriff Charles Odom that commenced as follows:
No further ruling as to what defendant had stated as to his age was invoked.
In the briefs of the attorneys for the parties respectively, they cite and quote from Gamble, McElroy's Alabama Evidence, § 242.01(1) (1977), in which Judge McElroy sets forth with penetrating clarity the reasons for the rule footnoted by apposite authorities and containing the following paragraph:
We also quote the following statement from § 242.01(1) of the superlatively valuable treatise by Judge McElroy:
In our opinion, no authority cited by appellant supports his contention that defendant's statement that he was twenty years of age was "unreliable and untrustworthy" or that the admission made by him as to his age constituted inadmissible hearsay testimony. The defendant voluntarily took the stand, denied that he committed the alleged crime, but he was not asked either on direct examination or cross-examination any question as to his age. The trial court was not in error in any ruling it made as to any objection by defendant to the testimony of Officer Odom that defendant told him that "he was twenty years of age and he was born February 4, 1964." Our attention has not been called to any reported case in which it was even contended that an inculpatory statement by a defendant was not...
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