Appellant was tried and convicted for the offense denounced by section 5411 of the Code 1923. The indictment charged that he did carnally know, or abuse in the attempt to carnally know, Marie Wright, a girl over twelve years of age, and under sixteen years of age, etc. There were four counts in the indictment, all *Page 19 of the same import. No demurrer or other objection was interposed to the indictment. It was proper in form and substance.
On the trial below, the evidence, without dispute, disclosed that at the time of the alleged commission of the offense the girl in question was fifteen years of age. This girl, Marie Wright, was the principal witness for the State, and her testimony tended to make out the State's case as charged in the indictment.
The defendant (appellant) testified as a witness in his own behalf and denied that he had committed the act complained of testified to by the alleged injured party, Marie Wright. This controverted fact was the issue involved in this case.
Each act of carnal knowledge of a girl over twelve and under sixteen years of age is a separate and distinct crime. The testimony of State witness Marie Wright, as to this, was an election on the part of the State, and, as stated, the emphatic denial by the accused formed the sole issue to be tried. Durell v. State, 23 Ala. App. 307, 124 So. 665; Herbert v. State,201 Ala. 480, 78 So. 386; Marshall v. State, 22 Ala. App. 552,117 So. 612.
Evidence as to subsequent acts of cohabitation, and other subsequent associations, acts, and occurrences, between the parties were inadmissible, as has been held repeatedly by the appellate courts of this State. On the trial of this case there were numerous rulings of the court in conflict with the rule announced. The evidence should have been confined to the issue involved in this case, and the rulings aforesaid constituted reversible error in practically every instance.
In our case of Davis v. State, 20 Ala. App. 463, 103 So. 73,74, this court held, in a similar case, it was permissible for the State to offer evidence that the girl in question gave birth to a child, this "for the purpose of proving a crime and fixing the time." It was not error, therefore, for the court to allow such evidence in this case. But here the court went further and permitted, over the objections and exceptions of defendant, testimony by the prosecutrix and others, to the effect that the defendant was the father of her child, and allowed the State likewise to make profert of the child to the jury. These rulings were held to be reversible error in Black v. State, 24 Ala. App. 433, 136 So. 425.
As a result of the court's rulings, a considerable portion of the testimony allowed in this case was as to a purported compromise, or attempt by the accused to compromise this case before the trial was had, but after his arrest upon the charge. It needs no discussion or elaboration on this question to hold that the rulings of the court complained of in this connection were erroneous. The case of Brunson v. State, 26 Ala. App. 255,157 So. 678, and cases cited, are conclusive upon this point. After much discussion on this question between court and counsel, the record shows the following occurred:
"Thereupon Counsel for defendant stated, 'In as much as Your Honor excluded the testimony as to the compromise, we want at this time to ask Your Honor to declare a mistrial, on the ground that that is not eradicated from the jury — from the mind of the jury; it was permitted to stay in all during the trial, and by Your Honor's statement, you have not gotten it out of the mind of the jury, and cannot do it.'
"Thereupon the Court stated, 'In response to that, I will state I am leaving it to the jury, whether there was any evidence of compromise or not; I don't know whether there is or not, but I am leaving it up to them to decide.' I am leaving that to the jury to decide — if there was such evidence, or if there is such evidence, that is excluded."
The foregoing was not only confusing, bordering upon the anomalous, but was in direct conflict with the elementary proposition of law to the effect that it is the province of the court, not the jury, as to whether there was evidence on a given point or not. The province of the jury is to consider and weigh such evidence as may be submitted to them by the court, and to accord thereto such probative force as in their judgment should be allowed.
Other insistences of error are presented, but we refrain from further discussion as not being essential.
For the errors indicated, the judgment of conviction from which this appeal was taken is reversed and the cause remanded.
Reversed and remanded.