
    Everett Gainey, Appellant, v. State, Appellee.
    200 So. 363
    En Banc
    Opinion Filed February 4, 1941
    Rehearing Denied February 26, 1941
    
      
      Douglas & Shad and Parks M. Carmichael, for Appellant;- -
    
      George Couper Gibbs, Attorney. General, and William Fisher, Jr., Assistant Attorney General, for Appellee.
   Per Curiam.

This cause having been duly submitted upon the transcript of record and the briefs and oral arguments of counsel, all of which have been carefully considered by the Court, the majority of the Court are of the opinion that no reversible error appears in the record, and the judgment of the Court below is accordingly affirmed.

Affirmed.

Whitfield, Buford, Thomas and Adams, J. J., concur.

Brown, C. J., Terrell and Chapman, J. J., dissent.

Chapman, J.

(dissenting). — -The record here shows that a boy around 10 or 12 years of age and brother to the prosecutrix was in the rear seat of the car when an attempt was made to rape his sister by the plaintiff in error. The physical facts surrounding the attempted rape are as I see them, inconsistent with the guilt of the defendant; the plaintiff in error tried to get the consent of the prosecutrix to sexual intercourse and his persistence irritated her. The entire escapade, as shown by the record, is commonly practiced by the younger generation. The jury failed to follow the testimony and I think a new trial should be awarded. The Legislature in enacting the law under which the plaintiff in error was tried and convicted did not intend to send the men to the State prison for the mere solicitation of sexual intercourse as shown here. Such an act would be contrary to the general welfare. I cannot consent to the affirmance of this judgment.  