Love v. State

• Decision Date: 14 January 1930
• Docket Number: 6 Div. 622.
• Citation: 125 So. 685,23 Ala.App. 363
• Parties: LOVE v. STATE.
• Court: Alabama Court of Appeals

125 So. 685

23 Ala.App. 363

LOVE v. STATE.

6 Div. 622.

Court of Appeals of Alabama

January 14, 1930

Appeal from Circuit Court, Walker County; Ernest Lacy, Judge.

Lemmie Love was convicted of having carnal knowledge of a girl over 12 and under 16 years of age, and he appeals. Reversed and remanded.

James J. Ray and J. M. Pennington, both of Jasper, for appellant.

Charlie C. McCall, Atty. Gen., for the State.

RICE J.

Sections 79, 121, 122, and 167 of the Alabama School Code, a work prepared by Hon. Harwell G. Davis, adopted by the Legislature of Alabama, and promulgated as a part of the law of this state, by proclamation of the Governor, on October 1, 1927 provide for the taking of a biennial census of all children in this state between 6 and 21 years of age.

In section 79 it is provided that there be prepared "the forms and blanks to be employed in taking such census, and in compiling the reports thereon" from the county superintendent of education to the state superintendent of education.

In section 122 it is provided that the "report" of the "enumerators" employed in accordance with the terms of said section "shall be made under oath to the county superintendent of education," etc., and that such report shall be used at a later date by the county superintendent of education in making his "consolidated report to the state superintendent of education." Section 167.

It does not appear to us that section 7681 of the Code of 1923 is broad enough in its terms to cover and include such a "document" as the report of the enumerator, above to the county superintendent of education. But the common law is in force in this state, where not abrogated by statute. Scheuermann v. Scharfenberg, 163 Ala. 337, 50 So 335, 24 L. R. A. (N. S.) 369, 136 Am St. Rep. 74, 19 Ann. Cas. 937. And, independently of the Code section above referred to, the following language, while "quoted" in the opinion of the Supreme Court of our state, from which we take it, seems, nevertheless, to have the approval of the Supreme Court of Alabama: "In the United States somewhat greater latitude seems to have been allowed; and it has frequently been held that such entries are admissible if made in the course of official duty although not required to be made by law." Metropolitan Life Ins. Co. v. Parks, 210 Ala. 261, 97 So. 788, 789.

While the "record of census, relating to the age of Irene Trice, or the report of the census enumerator, referred to above, on the same subject, admitted to be "a record kept in the office of the county superintendent of education of Walker county," which was offered in evidence by the appellant, may not be, and we do not think it is, a "book or paper, or part thereof, required by law to be kept in the office, custody or control of any public officer," etc., described in Code 1923, § 7681, in such sort that by virtue of the terms of that statute a transcript of it "must be received in evidence in all courts" (and, if the transcript, of course, the original -Stevenson v. Moody, 85 Ala. 33, 4 So 595), still, in line with what, we think, is the attitude of the Supreme Court of our state as indicated in the opinion in the case of Metropolitan Life Ins. Co. v. Parks, supra, we hold that the...