Puckett v. State

• Decision Date: 18 June 1925
• Docket Number: 8 Div. 754
• Citation: 213 Ala. 383,105 So. 211
• Parties: PUCKETT v. STATE.
• Court: Alabama Supreme Court

105 So. 211

213 Ala. 383

PUCKETT v. STATE.

8 Div. 754

Supreme Court of Alabama

June 18, 1925

Appeal from Circuit Court, Franklin County; Charles P. Almon, Judge.

Porter Puckett was convicted of having carnal knowledge of a girl under 12 years of age, and he appeals. Reversed and remanded.

p>Page Williams & Chenault, of Russellville, for appellant.

Harwell G. Davis, Atty. Gen., and Lamar Field, Asst. Atty. Gen., for the State.

MILLER J.

The defendant was indicted, tried, and convicted for the offense of carnal knowledge or abuse in attempt to have carnal knowledge of a girl, Annie Lou Wallace, under 12 years of age. The jury fixed his punishment at death. The indictment as returned by the grand jury contained two counts: One charging defendant with rape; and the other with carnal knowledge of or abuse in attempt to carnally know a girl under 12 years of age. The indictment was drawn under sections 7696 and 7699, Code 1907.

According to the proof, the girl was born November 1, 1912, and the alleged offense was committed on August 13, 1924. She was 11 years and between 9 and 10 months of age, and she was small for her age.

The state, after practically finishing the introduction of its evidence, with leave of the court, entered a nolle prosequi as to the count charging the defendant with rape, and proceeded to prosecute him under the other court alone.

Dena Wallace was going with her sister, Annie Lou Wallace, along the road towards their home during the day on Wednesday August 13, 1924, and the defendant, their uncle, called to them, and he and Annie Lou went into the woods and remained a little while, where and when the offense was alleged to have been committed. Dena was 8 years of age. The court permitted her to testify, over the objection of the defendant. She had been to a day school only three or four days. She had attended church and Sunday school. She stated: "God made her, it was right to tell the truth, God takes care of good folks when they die," and "the bugger man gets the bad folks when they die, and the bugger man gets those people who tell stories." She had heard the Testament read; her grandmother read it to her. The trial judge saw this child and he heard the examination of her on her voir dire by the solicitor and defendant. We have indicated above only some of the answers to the many questions propounded to her. "It is only in strong cases the ruling of the court admitting them as witnesses should be reversed." White v State, 136 Ala. 58, 67, 34 So. 177, 180. The competency of such witnesses to testify must rest largely in the sound discretion of the trial court, subject to review for an abuse thereof. This examination of her does not show that she was incompetent to testify, but it appears she had sufficient intelligence to distinguish good and evil, and that she had sufficient knowledge of the nature and obligation of an oath to be allowed to testify; and the court did not err in permitting her to do so. Crenshaw v. State, 205 Ala 256, 87 So. 328; Wade v. State, 50 Ala. 164.

The trial court can, in its discretion, permit leading, suggestive questions, and also questions to refresh the recollection of a witness on the direct examination. The court did not err in its discretion in the examination of this witness by the solicitor. 12 Michie Dig.Ala.Rep. p. 1195, 165(2).

The undergarment worn by Annie Lou Wallace on the day the offense was committed was introduced in evidence. It was found that day on the ground where the offense was alleged to have been committed, and it had blood stains on it, which tended to show they were placed there from carnal knowledge of her or from an abuse of her in attempt to carnally know her. This garment tended to shed light on a material inquiry in the case, and it was properly admitted in evidence, Husch v. State, 211 Ala. 274, headnotes 2, 3, 100 So. 321.

This alleged offense was committed on August 13, 1924. The court permitted the state to introduce evidence by the physician that he went to see this girl that night, found her genital organs were torn, lacerated, and bleeding. She was torn internally and externally, and she died two or three days afterwards from these injuries. The defendant objected to all of this testimony by the physician. The court did not err in allowing this evidence to go to the jury. Her death from the injury was relevant as tending to show the extent of the abuse. This evidence of the doctor showed the abuse of the genital organs and the extent of the injury, which tended to prove the offense charged had been committed. Pitts v. State, 210 Ala. 662, 99 So. 65; Malloy v. State, 209 Ala. 219, 96 So. 57.

In this connection the court did not err in refusing written charge numbered 1 by us on the margin of the record, which was requested by the defendant. There was evidence that the girl died as a result of this attempt to have intercourse with her. This evidence as to her death was relevant, and the court would have invaded the province of the jury by giving this written charge to them. It was their duty from the entire evidence to fix the punishment.

The jury, by their verdict, fixed the punishment at death. The judgment of the court thereon ordering that the defendant be privately executed by the sheriff of that county on Friday October 3, 1924, by being hanged by the neck until he is dead, was not erroneous. The act approved September 29, 1923 (Gen.Acts 1923, p. 759), changing the law of execution of death sentence from hanging to electrocution, does not become effective as to death sentences by electrocution until the death sentence is set for a day subsequent to the last day of February, 1927. When the execution of such sentence is set for a day prior to the 1st day of March, 1927, the execution thereof must be by hanging as now provided by article 7, c. 278, Code 1907. These...