Johnson v. State

191 So. 268, 238 Ala. 1, 1939 Ala. LEXIS 420

Opinion

■ BROWN, Justice.

On the trial the defendant requested the following written charge: “(2) The court charges the jury that the mere fact that the defendant had sexual intercourse with Frances Hurst does not render the defendant guilty of seduction.” The trial court refused this charge, and its refusal is the sole predicate for the reversal of the judgment of conviction by the Court of Appeals. The ruling of the Court of Appeals is supported by Murphree v. State, 23 Ala. App. 39, 120 So. 305.

The holding in the Murphree case is not approved.

The charge singles out and gives undue prominence to a single fact, is argumentative and possesses misleading tendencies, and was therefore properly refused. Brand v. State, 13 Ala.App. 390, 69 So. 379; Swint v. State, 154 Ala. 46, 45 So. 901; Brooks v. State, 8 Ala.App. 277, 62 So. 569; 6 Alabama Digest, Criminal Law, 811, page 807.

The writ of certiorari is therefor granted, the judgment of the Court of Appeals is reversed and the cause remanded to that Court for further consideration.

Writ of certiorari granted.

ANDERSON, C. J., and THOMAS, FOSTER, and KNIGHT, JJ-, concur. GARDNER and BOULDIN, JJ., dissent.