Miller v. State

• Decision Date: 29 June 1918
• Docket Number: 4 Div. 567
• Citation: 16 Ala.App. 534,79 So. 314
• Parties: MILLER v. STATE.
• Court: Alabama Court of Appeals

79 So. 314

16 Ala.App. 534

MILLER v. STATE.

4 Div. 567

Court of Appeals of Alabama

June 29, 1918

Appeal from Circuit Court, Geneva County; H.A. Pearce, Judge.

Henry Miller was convicted of having carnal knowledge of a girl under age of consent, and appeals. Reversed and remanded.

W.O Mulkey, of Geneva, and N.H. Mixson, of Samson, for appellant.

F. Loyd Tate, Atty. Gen., and Emmett S. Thigpen, Asst. Atty. Gen for the State.

BRICKEN J.

The indictment upon which the defendant was tried and convicted was challenged by demurrer; the first and second grounds thereof being predicated upon the fact that the indictment fails to allege the time at which the offense was committed and that the indictment fails to allege that the offense was committed since March 17, 1915, the date of the approval of the act under which the defendant is indicted.

While the act (Acts 1915, p. 137) approved March 17, 1915, is designated as an amendment to section 7700 of the Code of 1907, the operation thereof, so far as it relates to a girl over the age of 14 and under 16 years, is a new law, and creates a new offense, in that the age limit is changed to 16 years, and the offense is made a felony, and, as the period of time of 3 years anterior to the indictment of this felony extends beyond and prior to the date of the passage of the law, it was necessary, under the uniform decisions in this state, that the indictment should either allege the date of the commission of the offense charged, or that the offense was committed subsequent to the date of the passage of this act. For non constat the defendant committed the offense prior to the passage and approval of the act of 1915, supra. The demurrer went to this point and should have been sustained. Glenn v. State, 158 Ala. 44, 48 So. 505; Marks v. State, 159 Ala. 89, 48 So. 864, 133 Am.St.Rep. 20; Kelly v. State, 171 Ala. 44, 55 So. 141; Bibb v. State, 83 Ala. 84, 3 So. 711. In other words, it is essential that the time be stated in the indictment, unless the statute has been in force for such period of time as to cover the limitation of the action. Authorities supra. For it is expressly provided that no person shall be punished, but by virtue of a law established and promulgated prior to the offense and legally applied. Const.190l, § 7.

The defendant undertook and offered to prove that he did not know the age of Bertha Odom, and that from her appearance and size and height the defendant honestly entertained the belief that she was over 16 years of age. The court would not permit this proof, and stated "that under the statute under which defendant is indicted, that the question in this respect is as to her age, and not as to her appearance, or what the defendant honestly believed it to be"; and the court's ruling upon the evidence and upon special charges requested by the defendant were in line with the above statement by the court. In this there was no error, as the crime does not depend upon the knowledge of the defendant of the fact that the girl in question was under the age of 16 years, but upon the fact itself, as the statute fixes the age of consent at 16 and is intended for the protection of girls under that age, and knowledge of the age of the girl is not made an element of the offense. If into this statute should be injected the knowledge of the age of the girl, or if the fact of her appearance would indicate she is more than 16, will justify the defendant in the commission of the offense, in many instances the very purpose of the statute would be thwarted, for it is a matter of universal common knowledge that many girls under the age of 16 are more precocious and more fully developed than are those of 16 and even 17 years of age, and it is manifest that these are the very girls, those who are more mature in appearance, whom the statute is intended to protect, and who most need the protection of this statute. As said by an eminent writer and jurist:

"We repudiate utterly, as most dangerous, the notion that any

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