The opinion
THOMAS, Justice.
The indictment, trial and conviction were under the statute. Code 1940, T. 14, § 398.
The testimony set out by the Court of Appeals is in direct conflict on the fact as to whether defendant did or did not have sexual intercourse with the woman named in the indictment. She testified that he did have such intercourse with and abused her in the act. The defendant testified that he did not stay in the room with her or have anything to do with her during the night.
Charge 14 was not unlike charge number three approved in Sims v. State, 146 Ala. 109, 112 , 41 So. 413 , and it is insisted by appellant that refusing charge fourteen was reversible error. Under the contradiction in the evidence, which we have noted, the charge if not abstract was misleading. 64 Corpus Juris, p. 671, § 599.
The petition for certiorari is denied.
Writ denied.
GARDNER, C. J. and BROWN and LIVINGSTON, JJ., concur.