The indictment contains two courts ; the first charging the defendant with rape, the second, with carnal knowledge of a female under ten years of age. The indictment was thus framed to meet the different phases in which the evidence might present the offense. If force was used or the party made to yield unwillingly, the offense would come under the first count. On the other hand, if the evidence showed carnal knowledge of a-female of such tender years, as to be incapable of legal consent, the offense would be covered by the second count, There was but one unlawful act charged. The demurrer was properly, overruled.— Beason v. The State, 72 Ala. 191. At the third term after the arraignment of the prisoner, and after he had pleaded to the indictment, and had the cause continued, he interposed a plea in abatement, because of a misnomer. The plea came too late, and the court did not err in disallowing it.
When the party with whom it was alleged the defendant had sexual intercourse was offered as a witness, the defendant inquired as to her competency to testify. Some of the remarks of the judge as to a future state of rewards and punishment, were uncalled for. The sentiments expressed may have been the opinion of the person presiding, but were certainly not proper and were not calculated to add weight to the responsibility and solemnity of an oath. We are of opinion the answers of the witness were such as to show that she was competent, and the court did not err in receiving her *90testimony. — Beason’s Case, 72 Ala. 191.
In his argument the solicitor urged the jury to sentence the prisoner to the penitentiary rather than to impose the death penalty, upon the ground that if hanged his services would be lost to the State, whereas the State might be greatly profited by his labor, if sentenced to the penitentiary. No such considerations should influence the jury in the exercise of a discretion the law reposes in them as to the degree and extent of the punishment. The facts of the case, showing the offense to be more or less aggravated, should control the discretion of a jury, and not the pecuniary profit of a conviction and sentence. Profit to the State is not a fact upon the issue of guilt or innocence, or extent of punishment.
The charges requested by the defendant, with the exception of No. 7, were properly refused. sThere was evidence tending to show the guilt of the defendant, and the general charge should not have been given. The other charges refused were either argumentative, abstract, or invaded the province of the jury.
We are of opinion that charge No. 7 should have been given. The only criticism to which this charge is subject is in the use of the word “seggregately.” We have not found the word in any standard dictionary or work, but segregate and segregated are not infrequently used, and their meaning, very generally understood. Its use was unnecessary in the charge and superfluous, but a mere superfluity does not vitiate a charge. The charge was not obscure in its meaning. The principal of law asserted was correct, and the court erred in its refusal. For the error committed the judgment must be reversed.
Reversed and remanded.