Almon v. State
109 So. 371
Ala. Ct. App.
1926
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*1 REPORTS ALABAMA APPELLATE 21 466 рroperly appointed in- requested The trial court -charges [5, 6] written 1923, prosecutrix. ruling terpreter § Code refused. The fendant were (v. Cyc. R., 2414; ; charges 7724 Jung, B. L. & P. Co. are sustained 40 these court on o£ the 461, So.'434, State, 161 49 Ann. Cas. following Ala. 18 Tatum v authoritiеs: 557; 754, Barber, Odasz, 726, etc., 436, 29 App. 85 F. 102 Co. v. Ala. 20 State, 35, Shirley many C. 40 So. C. A. 631. How children defendant 5 8; charge State, charge Ala. had was Russell v. 269, covered irrelevant. 20 7 toas charge App. 68, charge; 101 refused So. 71. The evidence oral Case, disputе ; copy in Bluett’s the affirmative 26 is a 15 436, good, App. 84, 41, to be refused. Tatum 20 and held Ala. Ala. 151 Case, (Cooke’s 102 was abstract in this case it but supra); was also abstract. Omitting part, appears BRICKEN, affirmatively the defendant P. J. the formal It fought willingly deadly weapon. against appellant charged the indictment that “William Almon Moore, and with out, forcibly pointed ravished Irma errors For the girl.” The defendant demurred to grounds: the indictment in- “Said Reversed person allege that dictment fails to ravished woman.” was a insisted demurrer [1] It (109 So. indictment as the (5 Div. v. STATE. substantially with the form does not conform 1, Code, 4556, 1926. 88, girl June of Alabama. and a without Criminal § 29, 1926.) June Granted any age proven alleged is woman. not a this insistence to mean construe <@=>19. and informatiоn 1. Indictment the word defective the use of rape “girl,” rather than for Indictment “girl,” instead “woman.” of the ‍‌‌‌​​‌‌​​​​‌​​‌‌​‌​​‌​​​​​‌​​​‌‌​​‌‌‌‌​‌​‌​​​​​‌‍word notwithstanding defective, “woman,” held not wholly insistence is identical without merit. 4556, form 88. Code has been decided <@=>230 rape, prosecutiоn for 2. Witnesses —In cases 734, of Dixon v. prosecutrix’s appointment in- mother as Rep. 57, Am. Ann. Cas. St. improper. terpreter held not Butler v. prosecuting rape, In where for King v. 25 So. 178. tongue-tied that she could not witness was so appears [2] It from record that except by persons familiar with be understood her, was arraignment, plea, before and defendant’s but appointment interpreter her mother as trial, improper. entering known it was made injured party, to the court that <@=>I170(1). 3. Criminal Moore, physical in Irma with a was afflicted rape, for exclusion of firmity prop necessitating many had, tion as to how children defendant testimony; ‍‌‌‌​​‌‌​​​​‌​​‌‌​‌​​‌​​​​​‌​​​‌‌​​‌‌‌‌​‌​‌​​​​​‌‍erly interpret and translate her prejudicial. tongue-tied infirmity that she was speech and ut and as a result thereof 'impaired obstructed terances were so <@=>51 Rape fa- one not could not understood Evidence objection and ex miliar ception with her. Over held insufficient to sustain conviction for the court administered of defendant <@=>6. Rape Moore, an o.ath to Mrs. Berta the mother of Force, is essential Moore, truly correctly interpret Irma “rape.” element of and court what Miss definitions, [Ed. Note.—For other see Words objеctions ap Irma Moore testifies. The Phrases, Series, Rape.] First and Second pellant Moore, were based to Mrs. witness, relating by mother of her mouth this Court, Randolph Coun- testimony; (2) grounds on the it is not Denson, Judge. N. D. foreign speaks any shown that the witness rape, William Almon was convicted of investigation by language.” After appeals. Reversed, and remanded on re- objections the ruled, were over defendant’s hearing. excepted. stated, controversy There was no relative Hooton, Roanoke, I-Iooton & Moore; alleged physical infirmity conflict, appear, and was made to without argue questions raised, Counsel but that, affliction, because of such could citing authorities. ‍‌‌‌​​‌‌​​​​‌​​‌‌​‌​​‌​​​​​‌​​​‌‌​​‌‌‌‌​‌​‌​​​​​‌‍by any оne not familiar be understood speech. was, of Atty. Gen., her manner of Harwell H. G. Chas. state, and, principal Brown, be- Asst. for the State. <@=>For and Indexes in all see same and KEY-NUMBER other cases timony. cause of the state’s vided the could whеre one is the mother did er was also evidence partial, had, manner of in the this connection and we hold that the insist this court dealt with trial of this case. We must therefore assume ment of conviction plain that no this its leged er portance being he forced was other translate testimony ence here made cannot cured. was also the fact was witnesses ant’s as an fied ter should be sented sustain “How sustained who given discover and learned exceрts. questions. 1 Ante, There being of imperative duty entirety court was court, and to this testified the developed apprehended children, be Upon interpreter. words, commission material, a sentence his many children have penitentiary) the court to case, and must record principal point the law Here, p. 100. asked, upon objection heard and and correct no error in case prejudice this of Therefore the court used doWe during as Having only the examination interpretation, of this trial needed, there alleged trial conclusion that the given by state’s of evidence nature give sufficiency provided invoked in this necessity, as properly, contemplates espеcially whole, means end, Terry case mother of the therefore .of of judge was flight. of The such was made. carefully to the court determined. four resulted to defendant in we appealed from. and to the state of the court so consider, injured the a disinterested the offense his and decided that it was were provide this case. interpretation progress of the regard is without error. of the another state. There to read this objection must sustain of decision here interposed no insistence by tending testimony her if or five shortly after years’ imprisonment who so held. of the question rested direct examination: truly, appellant of the in his own several sustained. possible These were which this and you?” The manifest affirm of the daughter done party, that a accusation, and defendant connection; en rulings of them and upon jury question no witness, and to show the to the moth light evidence of so, inquiry of several banc, as to her The court (who ruling was used to be se record interpre the fair, shall be against impelled that the the fair her tes- do. Of But trial arewe behalf, the on the of the cause judg- testi 387,1 pow who pro- pre- this im the We im- ex- no al- he in of Ala.App.) *2 v. STATE the stitute the offense tirety, points then, nothing; which therefor would him with Irma ed, lishment tender required tained lish law, due and have decided we were the law the conduct of the rent of decisions without there is an essential element of can be court, thе had such sexual the she testified: nothing.” and mitted defendant fails to either the tial elements of connection didn’t “What From the much.” told tion clusion dence as of this we hold sexual asked, she Q. “What quested and its refusal tled “Did sorter.” That defendant carried [4] hold-youtight?” “Did without actual or.constructive injured party replied: sufficiency emphatic being repeated conclusion is her to the offense principle the evidence as As you it It is can say as “What did outcry therein, and, did and other did years, intercourse with of decision involved. We of this of this state. However we now now, force, he done of stated a replied: careful Q. say be stand. definitely Q. a word.” rape. testimony you rape. whole, with his take writing elementary answer en “I done appellant tell “Did he no that the “When denial of under anything of the evidence to sustain of law either tell do,” and if the facts fail to banc, On rape. There alleged in be erroneous and in it himself.” off hеr underclothes Moore. In thus as rape; him he could do that?” you do,” have intercourse is resistance, fails of conviction further read this “Yes, establish him about accused inevitable. this of the Answer witness: error. adduced charged, she оnly nothing.” settled this he took hold of afflicted kinswoman Again considered each of this rape as principal question was impels replied: ‍‌‌‌​​‌‌​​​​‌​​‌‌​‌​​‌​​​​​‌​​​‌‌​​‌‌‌‌​‌​‌​​​​​‌‍to establish the essen- was hurt affirmative reached, in original opinion, to him?” A. sexual intercourse replied: in oft-decided, sir.” her. the accusation and to this rape,- rehearing, consideration, we may error the use being the trial other accused record you?” was no By it?” upon as us to in the Upon his conviction She was a uniform like Moore defined cannot “No, In substance reprehensible have been words, the Solicitor: a matter a room “I in force states , concluding questioned,- A. import the in wrongful involved. regarded of didn’t do "that the con well-set sir.” viеw A. “Not accomp he as stat holding “No; of this “I herself be its asked: under estab given there force “Yes, trial con con per 4G7 was cur this said evi had the the en did To re- he Q. of in of 'I APPELLATE REPORTS 21 ALABAMA 4=08 possessing rehearing, insistences, regard cannot cоnvict the defendant of still.” on tlie opinion in the decided to the other adhere to each merit and we Shumate, Guntersville, P. W. them, except stated. as hereinabove granted. rehearing application *3 The evidence wаs insufficient sustain a to Judgment aside. The is set of affirmance Gipson State, ante, p<.277, conviction. v. App. 251, So. Leith v. Application rehearing granted. State, ante, p. Burnett v. Reversed and Charge given. So. 321. 4 should have been App. 360, 1B2; Scоtt App. 167, Dabbs v. App. 82, Gamble v. (109 463.) Div. SMALLWOOD STATE. conversation distilling liquor, is relevant. held deputy searched for admissible. him for 15 months for he examination. 3. Criminal law 1. Criminal law Proof of Statement distilling not at home held brought flight as to raid near his house when <§=351 <@=351(3). Denied June <@=396(2). defendant to out Alabama. June defendant, distilling, admissible, defendant on cross- and failed to find deputy charged on arrest part 1926. Harwell G. that raid of the ness answered: predicate, ness whether thing tried.” porter. from the officer that went down defendant,, wаs allowed to ask rest “Yes, sir; Brief of counsel did SAMFORD, him, about and he said he was not still I leaving J. solicitor, the defendant ‍‌‌‌​​‌‌​​​​‌​​‌‌​‌​​‌​​​​​‌​​​‌‌​​‌‌‌‌​‌​‌​​​​​‌‍had said asked After him over country why laying- reach he ran there to ready state’s wit after The wit State. to away any Re- ar- der Code lows: ly refused, for liquors, and, 4. Criminal law no error is burden is reasonable that ling, possession conflict. tilling liquor, dence was in 7. Criminal law ruled. 5. Criminal law objected to, conviction for essential tial clude all Eenn Charge Intoxicating, liquors <@=238(l). Wherе evidence was Affirmative Where Charge W. W. parts Smallwood was purpose part 1923, 4657. « state’s evidence was of the still was doubt to each as invasive 'that burden is on state Haralson, if it is court appeals. and no held complete of still was answer was charges, distilling liquor, <§=1054(1). <§=752. <§=763, properly refused, shown that one of the essen- possessed manufacturing exception for review. Judge. still and to Court, Marshall Coun- 764(8). province convicted of missing made missing, prove every properly motion to ex- complete acquit where evi- one of beyond prohibited is as authorize jury, un- reserved, for dis- proper- distil- if one prove over- still fol- all for this motion to exclude was examination: ed defendant on cross-examination. asked witness Short the was back fendant said to the his home that part he made search for defendant and did not find witness saw defendant dence. We have examined the fendant, cumstance find no ant’s motion to exclude all of the state’s evi faction of the of dence, which, part [4] The seventh The court overruled [2] The solicitor [3] On the deputy, (defendant’s) answer, admissible him; of the same conversation of which had been difficulty distilling?” Objection to return a of the defendant eighth assignment against him. day. Bill day the record. The they if not “Are jury, may ample Ooleman, exception community defendant was house and he was This was assignment deputy, raided a still refusal, it was 15 months until reaching explainеd verdict of evidence to authorize permitted the solicitor on cros again. a motion and Eenn indicted be taken brought that he was taken. Proof admissible of error is prove flight. .a of error is bas the conclusion This evidence grant relevant conversation, arrested, overruled. guilt. to exclude there near that; out (Coleman) interpos- prove by satis- evi- cir- de at s <@^For all cases see same KEY-NUMBER Indexes