The court did not commit error in putting the defendant to trial before the same jury that passed upon the plea of misnomer. Whitaker v. State, ante, p. 114, 105 So. 433.
The entire inquiry as to the plea of misnomer was useless. The defendant was indicted as "Ott Clark, whose name is to the grand jury unknown than as stated." Such an indictment is not subject to a plea of misnomer. Bryant v. State, 36 Ala. 270. This will dispose of the several exceptions reserved to the admission of evidence on the trial of the issue on the plea in abatement.
Everything said and done by the parties at the time defendant was in bed with the girl is part of the res gestæ and is admissible in evidence, and as a part of what was taking place, a witness who was in the bed with the girl, may testify, as a shorthand rendition of facts, that defendant was begging the girl to get up and go in another room with him, so that "he could get to her better." Pate v. State, 20 Ala. App. 358,102 So. 156.
That the witness Audrey Coker recognized defendant in the dark would have a bearing on the probative force of her testimony, but would not render such testimony inadmissible.
The fact that defendant knew the girl with whom he is charged with having intercourse would be at that certain place at that certain time, and that defendant would also be there, was relevant as tending to prove an assignation. For this purpose a note written by defendant to that effect was admissible.
There was evidence tending to substantiate the charge, and therefore the general *Page 599 charge was properly overruled. Lakey v. State, 20 Ala. App. 78,101 So. 537.
Refused charges 2, 3, and 4 were invasive of the province of the jury. Refused charge 5 was covered by given charge 6, and refused charge 6 was covered by the oral charge of the court.
Other exceptions have been examined, but in no instance did the court by his rulings commit reversible error.
The motion for new trial was properly overruled. There is no prejudicial error in the record, and the judgment is affirmed.
Affirmed.
On Rehearing. In the original opinion we held refused charge 4 to be invasive of the province of the jury, on the theory that there was evidence sufficient upon which the jury might have concluded that an act of sexual intercourse occurred between the parties, in a room adjacent to the one in which the first and second acts occurred. In this we are now convinced that this court was in error, for the reasons following:
The state by its testimony had fixed the first act of intercourse in a bed where two girls were sleeping, one of whom was Margaret Coker. Each act of carnal knowledge of a girl over 12 and under 16 years of age is a separate and distinct crime. The testimony of the state's witnesses as to this was an election on the part of the state to proceed with the prosecution for that act committed in the bed with Margaret Coker, and by appropriate action by defendant the state must be held to the election made. The defendant sought to confine the prosecution to one act by requesting charge 4, which was refused. This was error. Barefield v. State, 14 Ala. App. 638,72 So. 293; Herbert v. State, 201 Ala. 480, 78 So. 386; Davis v. State, 20 Ala. App. 463, 103 So. 73; Thomas v. State,20 Ala. App. 128, 101 So. 93.
The court in its oral charge did not specifically confine the right to a conviction to the room in which the first act of intercourse is alleged to have taken place, and hence we cannot say that the refused charge was covered by the court's oral charge. The application is granted. The judgment is reversed, and the cause is remanded.
Reversed and remanded.