
    Richardson v. The State.
    
      Indictment fot Rape.
    
    1. Erroneous charge ; token not ground for reversal. — Erroneous instructions to the jury will not work a reversal unless excepted to.
    2. Charge to jury; qualification of, when not erroneous. — It is not error to add a qualification) asserting a correct legal proposition, to a charge requested orally.
    3. Indictment for rape; What defendant may be convicted of, under. — Under an indictment for rape, a conviction may be had of assault with intent to commit rape, or assault and battery ; and a charge requiring the jury to acquit unless they believe the defendant did the deed “ as charged,” is properly refused.
    4. Charge; when properly refused. — A charge based partly on a state of facts of which there does not appear to have been any evidence, is abstract, and for that reason may be refused.
    
      Arpeax. from Circuit Court of Greene.
    Tried before Hon. Luther B. Smith.
    Tbe appellant was indicted for rape upon one Yiney Hicks. Sbe was examined as a witness, and testified to the circumstances of tbe assault upon ber, and that tbe defendant threw ber down, and accomplished bis purpose. Sbe made but little outcry then, but told some persons afterwards. Tbe testimony showed that sbe came to a field where defendant was at work, to collect a small debt be owed ber, and a witness for tbe defense testified that be was at work near by when tbe prosecutrix came up; that defendant was engaged in riving boards, without having on any shirt, and “sbe came up behind him and cut him on tbe naked skin,” whereupon defendant “slammed ber on tbe ground,” and sbe got up and went home, muttering something be could not bear.
    This was tbe substance of all tbe testimony,' except as to venue.
    Tbe court, of its own motion, charged the jury, “ if they believed from tbe evidence that the defendant, in tbe county of Greene, before tbe finding of tbe indictment, ravished by force tbe woman, and that be penetrated ber person, then they must find tbe defendant guilty, and sentence him to. death by banging, or confinement in the penitentiary for life; and if they believed from tbe evidence in tbe case that the defendant assaulted tbe woman, with tbe intent to ravish ber, they must find him guilty of assault with intent to commit rape, and leave tbe punishment to tbe court; that if they believed that tbe defendant did not commit a rape, or an assault with intent to commit a rape, but that be forcibly assaulted, and threw bey down, they might find him guilty of assault and battery.”
    No exception was reserved to this charge.
    Tbe defendant then requested tbe court orally to charge tbe jury that “ if they believe from tbe evidence that Yiney Hicks first struck tbe defendant with a switch; on tbe naked skin, that they might consider this in determining tbe guilt of tbe defendant of tbe offense of assault and battery,” which charge tbe court gave, but added, that “ if they believed tbe assault made by tbe prisoner was disproportionate to that received by him, they might still find him guilty of assault and battery.” To this modification, tbe defendant duly excepted, and then requested, in writing, tbe following charges to tbe jury: 1st. “That if from all tbe circumstances, they did not believe tbe defendant did tbe deed as charged, they must acquit.” 2d. “ That if tbe jury find that tbe subject of tbe rape is a woman of bad fame, and that she stands unsupported by other evidence; that sbe concealed the injury for a considerable length of time after she could have complained; that the act was done at a time when her cries could have been heard, and she made none, then these circumstances will proportionally diminish the credit to be given to her testimony by them.” These charges the court refused to give, and an exception was reserved to its ruling.
    Snedecor, Cockrell & Head, for appellant.
    A defendant cannot be convicted of the crime of assault with intent to commit a rape, unless he actually attempt to cohabit with the female by force and against her consent. The charge given by the court ignored force and non-consent, which are essential ingredients of the crime. — 80 Ala. 54.
    John W. A. Sanford, Attorney General, contra.
    
    Oral charges may be modified or qualified so as to prevent misleading the jury. — Morris v. State, 25 Ala. 58.
    Both charges asked by the defendant were abstract, there being no evidence of the character of the witness introduced. Gilliam v. The State, 50 Ala. .
    The charges asked must assert absolutely correct legal propositions, applicable to the evidence, and if defective in any particular, their refusal is no ground for reversal. — Cohen v. The State, 50 Ala. 108; Irvin v. The Stale, 50 Ala. 181.
   STONE, J.

We find nothing in this record to require a reversal of the sentence of conviction. In the general charge, there is at least one error of expression, but no exception is taken to any part, or even to the whole of that charge. We have repeatedly held that we will not reverse for erroneous instructions to the jury unless there be exception reserved to such instructions. The reason is obvious. If exception be taken, the error, if any, may be cured by a correction of the erroneous ruling; or, adverse counsel may prefer to withdraw such ruling, rather than incur the hazard of a reversal. Johnson v. State, 29 Ala. 62; Jones v. Jones, 42 Ala. 218; Irwin v. State, 50 Ala. 181; Murphy v. State, 54 Ala.

This disposes of all the points raised on the general charge.

The qualification of the charge requested orally by defendant, and given by the court, asserts a correct legal proposition, and is no ground of error.—Mooney v. State, 33 Ala. 419; Morris v. State, 25 Ala. 57.

Two charges were asked by the defendant in writing— refused by the court, and exceptions reserved. The first of the two is free from fault, except in the last clause. The only deed charged in the indictment is rape. Yet, under the indictment, the defendant could be convicted of either rape, assault with intent to commit rape, or assault and battery. The charge assumes that if the jury are not convinced “ beyond a reasonable doubt that the defendant did the deed as charged, they must acquit.” This charge, if given, would have precluded the jury from convicting the defendant of either of the lesser offenses.—Martin v. Hill, 42 Ala. 275.

The second charge asked • contains, as an element of its hypothesis, “that the subject of the rape is a woman of bad fame.” The bill of exceptions affirms that it contains “ all the testimony in the case.” It contains no evidence of the woman’s character or fame. This constituted the charge abstract, to the extent pointed out, and justifies its refusal. 1 Brick. Dig. 338, § 41.

The judgment of the circuit court is affirmed, and the sentence of the law must be executed.  