STEWART v. STATE, 49 Ala. App. 679 (1973)

275 So.2d 358

Frank STEWART, Jr. v. STATE.

4 Div. 178.Court of Criminal Appeals of Alabama.
March 27, 1973.

Appeal from the Circuit Court, Russell County, James H. Caldwell, J.

V. Cecil Curtis, and S. Leon Bennett, Phenix City, for appellant.

William J. Baxley, Atty. Gen., and Don C. Dickert, Asst. Atty. Gen., for the State.

YOUNGER, Circuit Judge.

The appellant was convicted of carnal knowledge of a female under the age of

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twelve years, with punishment fixed at twenty years.

The prosecutrix testified to facts tending to show that the defendant, Frank Stewart, Jr., took the prosecutrix, a female of the age of eleven years, from Columbus, Ga. and while enroute, and after crossing the river bridge into Alabama, either had carnal knowledge or abused her in the attempt to carnally know her.

Appellant urges as error that the trial court permitted the prosecution to ask leading questions of the eleven-year-old prosecutrix, and also permitted the recall of witnesses by the State who testified to matters in more detail than on initial examination. Both contentions are without merit. It is well settled in this State that leading questions are within the sound discretion of the trial court of witnesses of tender age. Myhand v. State, 259 Ala. 415, 66 So.2d 544(5). For a general discussion see Jackson v. State, 239 Ala. 38, 193 So. 417.

It is likewise settled law in this State, that the recall of a witness is within the discretion of the trial court. Peagler v. State, 207 Ala. 586, 93 So. 536; Bankhead v. State, 33 Ala. App. 269, 32 So.2d 814. We find that the court did not abuse its discretion in permitting leading questions of the prosecutrix nor in permitting the recall of witnesses by the State to elicit additional testimony.

After a careful search of the record, we are of the opinion that there was ample evidence adduced upon the trial to warrant a finding of guilty by the jury, and to sustain the judgment of conviction pronounced and entered. We have also reviewed the entire record under Code 1940, T. 15, § 389, and find no error.

The foregoing opinion was prepared by Honorable THOMAS N. YOUNGER, Circuit Judge, temporarily on duty on the Court pursuant to subsection (4) of § 38, T. 13, Code 1940, as amended, and has been adopted by the Court as its opinion.

The judgment below is hereby

Affirmed.

All the Judges concur.