Turner v. State, 4 Div. 431
| Court | Alabama Court of Appeals |
| Writing for the Court | CATES |
| Citation | 131 So.2d 428,41 Ala.App. 310 |
| Parties | James TURNER v. STATE. |
| Docket Number | 4 Div. 431 |
| Decision Date | 30 May 1961 |
Page 428
v.
STATE.
Page 429
[41 Ala.App. 311] H. E. Lane, Enterprise, and Boswell & Smith, Geneva, for appellant.
MacDonald Gallion, Atty. Gen., and David W. Clark, Asst. Atty. Gen., for the State.
CATES, Judge.
Turner has appealed from a judgment of guilt of carnal knowledge of a girl over twelve years old and under sixteen. The jury fixed the least permitted punishment, two years in the penitentiary.
The tendencies of the prosecution's evidence were sufficient to support the verdict.
Counsel for Turner argue three claims of error: (1) refusal of requested written charge 10; (2) refusal of requested written charge 20; and (3) the overruling of objection to the father of the girl testifying when she was born.
Charge 10 assertedly would go beyond simple assault and assault and battery as lesser offenses embraced by the charge so as to add also an indecent assault on a female. The oral charge stated:
'To constitute an assault there must be an intentional and unlawful offer to touch another in a rude or angry manner so as to create in the mind of the assaulted person a fear of a battery, coupled with an apparent ability to effectuate the attempt if not prevented. Now assault and battery, gentlemen, is the unlawful touching of the person of another by the aggressor himself or by some other substance put in motion by him. It must be done in a rude or angry manner; and every assault (sic) includes an assault and battery.' 1 (Italics added.)
No exception was taken to the oral charge but this would not be pertinent if indecent assault (if correctly presented in a requested
Page 430
written charge) is a separate crime from assault.Turner contends charge 10 comes from the opinion in Hutto v. State, 169 Ala. 19, 53 So. 809, 810. The charge reads:
'Gentlemen of the Jury, I charge you that although you may not be satisfied from the evidence that the Defendant had carnal knowledge of [prosecutrix] or abused her in an attempt to carnally know her, that if you are satisfied from the evidence beyond all reasonable doubt that the Defendant took an indecent liberty with the person of [prosecutrix], you may convict him for an assault.'
The Hutto opinion says:
'* * * To take an indecent liberty with the person of a female without her consent is to commit an assault at the common law. What would amount to an assault, because done without her consent in the case of a female capable of consent, must be an assault in any case, because a child under the statutory age is deemed to be incapable of consent. Such an act must, in contemplation of law, be considered as having been done without her...
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K.M. v. Alabama Dept. of Youth Services, Civil Action No. 2:02cv320.
...Page 1263 must be "rude or angry," this is not a narrow concept: "Indecency is within the meaning of rudeness." Turner v. State, 41 Ala.App. 310, 131 So.2d 428, 430 (1961); see also Surrency v. Harbison, 489 So.2d 1097, 1104 (Ala.1986) (quoting Singer Sewing Machine Co. v. Methvin, 184 Ala.......
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Bennett v. State, 6 Div. 855
...of another in rudeness or in anger is an assault and battery, and every assault and battery includes an assault.'' In Turner v. State, 41 Ala.App. 310, 131, So.2d 428, Judge Cates, now Presiding Judge Cates, said persuasively and in accord with other authorities that 'indecency' is within t......
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McCoy v. McCoy
...satisfying the Court that such facts are not, indeed, true. In this regard, the Court cites with approval the case of Turner v. State, 41 Ala.App. 310, 131 So.2d 428 (1961), in which the Court ruled that the statute making a certified copy of a record in the custody of the Registrar of Vita......
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K.M. v. Alabama Dept. of Youth Services, Civil Action No. 2:02cv320.
...Page 1263 must be "rude or angry," this is not a narrow concept: "Indecency is within the meaning of rudeness." Turner v. State, 41 Ala.App. 310, 131 So.2d 428, 430 (1961); see also Surrency v. Harbison, 489 So.2d 1097, 1104 (Ala.1986) (quoting Singer Sewing Machine Co. v. Methvin, 184 Ala.......
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Bennett v. State, 6 Div. 855
...of another in rudeness or in anger is an assault and battery, and every assault and battery includes an assault.'' In Turner v. State, 41 Ala.App. 310, 131, So.2d 428, Judge Cates, now Presiding Judge Cates, said persuasively and in accord with other authorities that 'indecency' is within t......
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McCoy v. McCoy
...satisfying the Court that such facts are not, indeed, true. In this regard, the Court cites with approval the case of Turner v. State, 41 Ala.App. 310, 131 So.2d 428 (1961), in which the Court ruled that the statute making a certified copy of a record in the custody of the Registrar of Vita......