# Montgomery v. State

> Alabama Court of Appeals · January 10, 1939 · 28 Ala. App. 442

URL: https://www.frixlaw.com/law-library/cases/9825075

## Case

- **Full name:** Montgomery v. State.
- **Court:** Alabama Court of Appeals
- **Decided:** January 10, 1939
- **Citations:** 28 Ala. App. 442; 186 So. 589; 1939 Ala. App. LEXIS 96
- **Precedential status:** Published
- **Opinion:** On rehearing
- **Judges:** Samford
- **Cited by:** 7 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9825075

## Opinion text

On Rehearing.
We have read with much interest the brief of the State on its application for rehearing in this case. It may be that “the fact of sex aberrations in present day society,” as is referred to in appellee’s brief, would call for action by the Legislature ; but, as the law is now, the abuse condemned by Section 5410 of the Code of 1923 contemplates a physical abuse of the genital or sexual organs. In passing upon this question, the Supreme Court in Castleberry v. State, 135 Ala. 24 -28, 33 So. 431, 433 , has this to say: “It is settled, that the word ‘abuse’ in the statute (Code, § 5447), punishing carnal knowledge, or abuse in attempting to have carnal knowledge of any female under fourteen years of age, must be limited in its meaning to injuries to the genital or sexual organs, and that an injury to these parts, in the attempt at carnal knowledge, is the only abuse to which the statute refers, and not to other forcible or wrongful ill usage, which would be an element of the offense of an assault with intent to ravish or other assault, subject to different punishment under other statutes. Dawkins v. State, 58 Ala. 376 , 29 Am.Rep. 754 .” Burton v. State, 8 Ala.App. 295 , 62 So. 394 ; Miller v. State, 16 Ala.App. 534 , 79 So. 314 ; Browning v. State, 21 Ala. App. 209 , 106 So. 895 .
In the instant case there is no sufficient evidence of any abuse to the genital or sexual organs of the little girl that would justify a conviction of the felony charge.
In Browning v. State, 21 Ala.App. 209 , 106 So. 895 , we did hold that [page 896] “force or violence not being an element of the crime of carnal knowledge, the crime of assault and battery is not embraced in the indictment in the case at bar. Toulet v. State, 100 Ala. 72 , 14 So. 403 .”
In the instant case we have held that the indictment is sufficient to sustain a conviction of .common law assault. This we do upon authority of Hutto v. State, 169 *446 Ala. 19 , 53 So. 809 , and other authorities cited in the original opinion.
In the Hutto Case, supra, Mr. Justice Sayre, writing the opinion for the Court, said [page 810] : “It appears to us that an indictment charging carnal knowledge of a female under the age of consent, notwithstanding that is a statutory offense of which . there are no degrees, contains within it a charge of assault, and assault and battery, and that proof thereof would involve no variance. To take an indecent liberty with the person of a female without her consent is to commit an assault at the common law. What would amount to an assault, because done without her consent in the case of a female capable of consent, must be an assault in any case, because a child under the statutory age is deemed to be incapable of consent. Such an act must, in contemplation of law, be considered as having been done without her consent. We think, therefore, that under this indictment and the evidence the defendant might have been convicted of an assault, or an assault and battery.”
In the original opinion we pointed out and quoted from the case of People v. Dowell, 136 Mich. 306 -310, 99 N.W. 23 , the duty of the Judge in such cases; and we, here and now, overrule that part of the opinion in Browning v. State, 21 Ala. App. 209, 210 , 106 So. 895 , wherein we there held that the crime of assault and assault and battery was not embraced in the indictment in that case.
The opinion is extended, and the application for rehearing is overruled.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9825075. Public record. Not legal advice.