Appellant was convicted of the offense denounced in section 5411 of the Code of 1923, and sentenced to serve 10 years in the penitentiary.
The indictment charged that, "before the finding of this indictment," defendant, "being then and there a man over 16 years of age, did have carnal knowledge of Berta Mae Wilder, a girl, over 12, and under 16, years of age, or did abuse such girl in the attempt to have carnal knowledge of her, contrary to law, and against the peace and dignity of the state of Alabama." The indictment was demurred to on the principal ground, variously stated, that the alternative averment therein framed as it was rendered it defective. In charging the offense, the indictment follows the language of the statute providing and describing the elements of the crime. The demurrers were properly overruled. 8 Mich. Ala. Dig. p. 629. The prosecuting witness testified that the criminal act was committed in the month of July, 1924, and, further, that she was born on October 9, 1908.
The state's witness, Sarah Glascow, testified that she was the grandmother of the girl (with whom defendant was alleged to have had the intercourse); that she was in the house (where the girl was born) when the girl was born; and that the girl was born October 9, 1908. She further testified that she made a record in the Bible (shown to her) of the birth of the girl at the time she was born; that the Bible was the family Bible of the witness, and that the date recorded in the Bible (October 9, 1908) as the date of birth of the girl was correct; that the Bible contained a record of births and deaths of members of her (witness') family.
The state thereupon offered in evidence the record of the birth of the girl as contained in the Bible. Defendant objected. The objection was overruled and exception duly reserved.
Before answering the question raised as to whether or not the court erred in overruling defendant's objection and allowing the record of the birth of the girl as contained in the Bible to be introduced in evidence, perhaps we ought to say that this witness, Sarah Glascow, further testified that, when the girl was born, a Dr. Turk was the attending physician, and that another state's witness, an uncle of the girl, fixed the date of her birth as October 9, 1908. Also that the defendant offered much evidence to show that the girl was born in April, 1908, this fixing her age at the time of the alleged intercourse at some 16 years and 3 months. The deposition of Dr. Turk was introduced in evidence by the defendant, and was to the effect that he had attended the mother of the prosecuting *Page 541 witness (the girl) when a child was born to her in April, 1908; that on April 24, 1908, a cyclone swept the community where he lived, seriously injuring him; that he never practiced in the community for the family involved after his injury in said cyclone; and that the child at whose birth he officiated was born a few days prior to the cyclone. Several other witnesses for the defendant fixed the date of birth of the girl as being prior to this cyclone, which, it seems, was practically conceded to have occurred in April, 1908.
It thus appears that as the age of the girl — as being less than 16 years at the time of the alleged intercourse — was an essential element of the crime charged against appellant, so the testimony on behalf of the state and the defendant was in sharp conflict. This being true, did the court err to a reversal in overruling defendant's objection and letting the Bible record of the girl's birth go in evidence?
In the early case of Cherry v. State, 68 Ala. 29, the Supreme Court, whose decisions we are to follow, said:
"Any book, document, or paper containing entries made by a parent or relation, as to such facts [of birth, marriage and death] may be received as the written declarations of deceased persons who respectively made them."
In the case of Landers v. Hayes, 196 Ala. 533, 72 So. 106, that court, speaking through Mr. Chief Justice Anderson, had this to say:
"The rule seems to be that hearsay evidence is always admissible to prove pedigree, and this term embraces not only questions of descent and relationship, but also the particular facts of birth, marriage, and death, and the time when these events may have happened. Such evidence is held admissible not only from the extreme difficulty of producing any better, but is resorted to upon the ground of the interest of the declarants in all such matters of family relationship and connection. These declarations, however, whether in writing or by word of mouth, should be confined to some members of the family as distinguished from a general rumor or neighborhood reputation, and as a predicate therefor it must appear that thedeclarant has since died."
From 10 Ruling Case Law, p. 1136, we quote and approve this:
"As a general rule, entries in a family record or Bible are admissible as evidence in matters of pedigree in order to prove relationship and the date and fact of birth, marriage or death of a party. * * * And while there has been some conflict of authority on the point it is generally deemed to be indispensable, for the use of these statements, that theentrant be unavailable as a witness." (Italics ours.)
In the present case, neither the conditions to, nor reasons for the admissibility of, the Bible entry allowed in evidence were present. While the entry was made by a member of the family (grandmother of the girl) the entrant was not dead, nor unavailable as a witness, but was in life and in court. The entrant testified to the fact sought to be shown by the entry; hence no reason, no necessity, existed for the reception of the entry. The only purpose or effect of it was to lend verity to the testimony of the declarant herself.
Being mindful of the reverence with which the Holy Book is regarded, and the credit one is inclined to accord to even temporal records placed therein, we are constrained to hold that this evidence in all probability had great weight with the jury on the material inquiry to which it was addressed, and that its presence was calculated to and did prejudice defendant's case. The Bible entry allowed in evidence was not legal evidence in the case, and its admission was error. Cherry v. State, supra; Landers v. Hayes, supra; White v. Strother,11 Ala. 720; Elder v. State, 123 Ala. 35, 26 So. 213; Rogers v. De Bardeleben Coal Iron Co., 97 Ala. 154, 12 So. 8; 1 Greenleaf on Evidence (16th Ed.) §§ 114a and 114b; Chambers v. Morris,159 Ala. 606, 48 So. 687; Elder v. State, 124 Ala. 69,27 So. 305; Sheffield Iron Corp. v. Dennis, 204 Ala. 530, 86 So. 467; Campbell v. Wilson, 23 Tex. 252, 76 Am. Dec. 67; So. Life Ins. Co. v. Wilkinson. 53 Ga. 535; Woodard v. Spiller, 31 Ky. (1 Dana) 179, 25 Am. Dec. 139; 1 Encyc. of Ev. p. 734; 10 R. C. L. 1136.
There was no error in refusing to admit evidence, offered by defendant, that Dr. Turk was so injured by the cyclone that he was unable to practice thereafter until the time he removed from the community. Anyhow, this was shown without dispute by the deposition of the said Dr. Turk.
On cross-examination of defendant's witness Wallace, the party who accompanied defendant and the girl on the occasion when the unlawful intercourse was alleged to have occurred, the state was permitted, over defendant's timely objection, to ask the witness if, at the time, he knew the girl was an inmate of the Industrial School, and to have him answer that he did know this fact. We are unable to see the relevancy of this evidence. It threw no light upon the issue of defendant's guilt vel non, and does not appear to have been a proper inquiry even on cross-examination. Doubtless it tended to prejudice the jury against the defendant, and its admission was error.
Whether or not depositions read in evidence to the jury will be permitted to be taken by the jury to the jury room when they go to make up their verdict is a matter within the discretion of the trial court. Code 1923, § 9511; Smith v. State, 142 Ala. 14 (27), 39 So. 329. While we are unwilling to affirm as a matter of law that the court abused its discretion in refusing to allow the jury to take with them the deposition of Dr. Turk, *Page 542 yet we can see no good reason why they were not so permitted.
The portion of the argument of the solicitor, refusal to exclude which is the basis of an exception, does not in our opinion transgress the rule prevailing in this state. Cross v. State, 68 Ala. 476. True, the sole issue in the case was as to whether or not the appellant had intercourse with the prosecuting witness (the girl), she being at the time under 16 years of age, and testimony as to her being an inmate of the Girls' Industrial School was irrelevant; yet the prosecutrix (if we may term the girl such) was allowed to testify, without objection, that she was an inmate of that school, thereby, in our opinion, affording a basis for the argument objected to.
While a reading of the record gives the impression that the evidence to the effect that the girl in question was over the age of 16 years at the time of the alleged intercourse considerably outweighed that to the effect that she was under such age, yet we do not feel authorized to hold that the verdict of the jury was so palpably against the weight of the evidence on this point as to call for an adjudication of error on the part of the trial court in overruling appellant's motion for a new trial. With only legal evidence admitted on another trial, the question will bear another aspect, and, inasmuch as the case must be reversed on other grounds, we refrain from a decision of this question at this time.
For the errors pointed out, the judgment is reversed and the cause remanded.
Reversed and remanded.
On Rehearing.