Moore v. State

• Decision Date: 30 June 1947
• Docket Number: 6 Div. 304.
• Citation: 33 Ala.App. 188,31 So.2d 373
• Parties: MOORE v. STATE.
• Court: Alabama Court of Appeals

31 So.2d 373

33 Ala.App. 188

MOORE v. STATE.

6 Div. 304.

Alabama Court of Appeals

June 30, 1947

Ben F. Ray, of Birmingham, for appellant.

A A. Carmichael, Atty. Gen., and Wm. N. McQueen, Asst. Atty Gen., for the State.

BRICKEN Presiding Judge.

This court has given this case our careful attentive consideration, and we are not in accord with the lower court's conception of the case, and his numerous rulings during its pendency.

We are of the opinion that this prosecution was improvidently begun. We think under the facts adduced upon the trial, the case comes within the purview of the case of Walker v State, 132 Ala. 11, 31 So. 557. In that case the Supreme Court said: 'If a man taken improper liberties with the person of a female, or indecently fondles her without her will and consent, he is guilty of an assault and battery.'

In our recent case of Austin v. State, 31 Ala.App. 630, 21 So.2d 126, it was said: 'The prosecuting witness, a little girl nine years of age, testified that, while attending a picture show in the city of Florence, Alabama the defendant against her consent, held her and placed his hands on her body in an indecent and rude manner. If established by the required proof, this was sufficient upon which to base a conviction as charged.' (Assault and battery.)

Our case of Thomas v. State, 19 Ala.App. 187, 96 So. 182, is of like import. The court there held, where a defendant was charged with having violated the person of a ten year old girl in a vulgar and indecent manner and against her will, and the proof under the required rule showed this fact, he was properly convicted of an assault.

Numerous other cases bearing similarity to those above cited could here be included, but is not deemed essential or necessary.

In the instant case the identity of the accused (defendant) was not in question. It appears defendant entered his plea of not guilty, and that he took the stand as a witness in his own behalf and denied the charge against him in whole, and in part. No alibi was involved, and no other defense was interposed, therefore the court was in error in permitting over the objection of the defendant, three other children who were not named in the complaint and who had no connection therewith, to testify as to previous acts of defendant between him and the three girls. Brasher v. State, 30 So.2d 31. In said case, our Supreme Court, among other things, said (Headnote 1): 'Generally, in prosecution for a particular offense evidence tending to show defendant guilty of prior offenses is inadmissible.' Headnote 4 in said case is as follows: 'Admitting evidence of prior offenses for purpose of establishing identity as...