¶1 (dissenting).
¶2 The opinion of the court of appeals as a predicate for the admissibility of the testimony going to show what subsequently occurred between the defendant and Mrs. Outlaw, states: “The prosecutrix testified that the defendant approached her on the streets of Birmingham and invited her to go with him for an automobile ride. She reluctantly accepted, but did get in his car. Finally the appellant stopped the car on a by-road several miles out. There the defendant told her that he had previously lost a bracelet. After some casual search for the article which he claimed he lost, the accused began to make improper advances to her, accompanied with threats to do her bodily harm unless she acceded to his demands to have sexual intercourse. After much dissuasion on her part, the defendant abandoned his asserted aim and carried her back to the city. …”
¶3 This predicate is sufficient to justify a review of the' ruling of the court of appeals which holds that the testimony is competent evidence. Birmingham Southern Ry. Co. v. Goodwyn, 202 Ala. 599, *18181 So. 339; Reichert Milling Co. v. George, 230 Ala. 3, 162 So. 393.
¶4 There is nothing in the circumstances stated tending to show that the defendant ■entertained the intent to ravish the prosecutrix. She was within his power and his “aim”, whatever it may have been, was not frustrated or interrupted by any outside ■event or occurrence, nor did she escape from him. She was peacefully returned to the city unharmed. In the absence of tendencies in the evidence arising out of the defendant’s acts and dealings with the prosecutrix going to show that he attempted to accomplish penetration accompanied by the intent to do so by force without Tier consent, the subsequent occurrence between Mrs. Outlaw and defendant sheds no light on the conduct of defendant towards Miss Eddins. Defendant did not attempt to have sexual intercourse without her consent. On the contrary, he voluntarily “abandoned his asserted aim” and returned prosecutrix to the City of Birmingham without having sexual intercourse with her.
¶5 In Dudley v. State, 121 Ala. 4(7), 25 So. 742, 743, it was observed: “In Jones’ Case, [Jones v. State, 90 Ala. 628, 8 So. 383, 24 Am.St.Rep. 850], the criminal purpose of the defendant was disclosed by him, but he used no violence on the prosecutrix. … ‘If the evidence raises a mere suspicion, or, admitting all it tends to prove, defendant’s guilt is left in uncertainty, or dependent upon conjecture or probabilities, the court should instruct the jury to acquit. The evidence should be of such character as to overcome, prima facie, the presumption of innocence. ….’ …
¶6 When these facts are viewed in the light ■ of the presumption of innocence which attended defendant as a matter of evidence throughout his trial, the evidence in this ■ case is not sufficient to authorize the court to.submit to the jury the question of the intent to rape. Toulet v. State, 100 Ala. 72, 14 So. 403; Doss v. State, 220 Ala. 30, 123 So. 231, 68 A.L.R. 712. The evidence going to show defendant’s relation with Mrs. Outlaw does not tend to show an intent to ravish. He did not ravish ..Mrs. Outlaw, did not attempt to force penetration without her consent, but likewise “abandoned his aim” and returned her to the city without any sort of abuse. This evidence, instead of showing or tending to show an intent to ravish, as the majority opinion assumes, shows just the contrary, — that defendant’s “aim” was to procure sexual relations by consent. There was no question of identity of defendant. This was admitted.
¶7 The testimony in respect to defendant’s dealings with Mrs. Outlaw was erroneously admitted, was highly prejudicial and the verdict of conviction for the felony charged in the indictment should not be allowed to stand. People v. Stewart, 85 Cal. 174, 24 P. 722; McAllister v. State, 112 Wis. 496, 88 N.W. 212.
¶8 By allowing the state to offer proof of the occurrence between the defendant and Mrs. Outlaw is to infringe the constitutional right of the defendant to demand the nature and cause of the accusation against him. State v. Jensen, 70 Or. 156, 140 P. 740. See also State v. Walters, 45 Iowa 389; State v. Greco, 7 Boyce (30 Del.) 140, 104 A. 637; Brockman v. State, 60 Okl. Cr. 75, 61 P.2d 273. To justify the admission of the evidence showing the transaction between defendant and Mrs. Outlaw the majority assume that he made an attempt to ravish her accompanied by the intent to do so and they assume to convict him of that offence with which he is not charged in the indictment. “Conviction upon a charge not made would be a sheer denial of due process.” Thornhill v. Alabama, 310 U.S. 88, 96, 60 S.Ct. 736, 84 L.Ed. 1093; De Jonge v. Oregon, 299 U.S. 353, 57 S.Ct. 255, 81 L.Ed. 278; Stromberg v. California, 283 U.S. 359, 51 S.Ct. 532, 75 L.Ed. 1117, 73 A.L.R. 1484.
¶9 I therefore respectfully dissent.