31 So. 2d 373 | Ala. Ct. App. | 1947
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,
In our recent case of Austin v. State,
Our case of Thomas v. State,
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 *190
previous acts of defendant between him and the three girls. Brasher v. State,
We are clear to the conclusion that in addition to the foregoing the trial court also erred in overruling and denying defendant's motion for a new trial, for that (1) The verdict of the jury is contrary to the law; (2) The verdict of the jury is contrary to the evidence; (3) For that the verdict or decision is not sustained by the great preponderance of the evidence or is contrary to law. Such is our opinion.
The judgments of conviction from which these appeals were taken are reversed, and a judgment here rendered discharging appellant from further custody in these proceedings.
By consent of parties the two cases against appellant were tried together. All this regular and by consent. What has been hereinabove said, and the judgment here rendered, applies alike to the two cases. Robinson v. State,
Reversed and rendered.