Johnson v. State

¶1The statute (Rev. Code, § 3663) declares the carnal knowledge of a female under the age of ten years, or the abuse of such female in the attempt carnally to know her, must, at the discretion of the jury, be punished either by death, imprisonment in the penitentiary for life, or hard labor for the county for life. The form of indictment prescribed by the Code (and which in this case has been pursued) is, “ A. B. did carnally know, or abuse in the attempt to carnally know, C. D., a female under the age of ten years.” This form of indictment the Code authorizes, when offences are of the same character, and subject to the same punishment. Rev. Code, § 4125. It was permissible, at common law, to charge such *459offences in different counts, to meet the evidence when fully disclosed on the final trial. No right of the accused is invaded, in permitting them to be charged in the alternative, in the same count, instead of several counts charging each alternative. Burdine v. State, 25 Ala. 60; Sherrod v. State, Ib. 78. Under such an indictment, the defendant may be convicted on proof of either grade or form of the offence. McElhaney v. State, 24 Ala. 71; Mooney v. State, 8 Ala. 328; Cheek v. State, 38 Ala. 227. And a general verdict of guilty, on such an indictment, is not ground of error,, or motion in arrest of judgment. Cawley v. State, 37 Ala. 152. It is not ground of error, or motion in arrest of judgment, because it protects the defendant from any future prosecution for either grade or form of the offence, and the sentence pronounced cannot impose any greater punishment, than would have followed a specific finding of guilt of one form or grade of the offence, and acquittal as to the other. In this particular case, if the jury had returned a verdict of guilty of one of the grades of the offence, and not guilty as to the other, they must have affixed the punishment, not other or different for the one than the other grade. No possible injury can, therefore, result to the accused from such finding.

¶22. The bill of exceptions expressly negatives any presumption that the dying declarations of the child, on whom the injury is charged to have been committed, were offered or received as part of the res gestee, or were so closely connected with the wrong as to be considered as her complaint thereof. It is affirmed they were offered strictly as her dying declarations. In so admitting them, the court erred. Dying declarations, according to the unbroken current of modern authorities, are admissible only in cases of homicide, when death, with the circumstances attendant on it, and the guilty agent in producing it, is the subject of inquiry. 2 Phil. Ev. 610, note 455.

¶3For this error, the judgment is reversed, and the .cause remanded ; but the prisoner must remain in custody, until discharged by due course of law. .