Barnett v. State
Decision Date | 30 June 1917 |
Docket Number | 7 Div. 476 |
Citation | 79 So. 675,16 Ala.App. 539 |
Parties | BARNETT v. STATE. |
Court | Alabama Court of Appeals |
Rehearing Denied Nov. 13, 1917
Appeal from City Court of Talladega; Marion H. Sims, Judge.
Rufus Jerome Barnett was convicted of an assault with intent to ravish a woman, and he appeals. Reversed and remanded.
W.B Harrison, of Talladega, for appellant.
W.L Martin, Atty. Gen., and Borden Burr, of Birmingham, for the State.
The judgment sustaining the demurrer to the second count of the indictment eliminated this count, and if the indictment before the demurrer was sustained, was subject to the vice of a misjoinder of offenses, effectually relieved it of this vice, and the evil consequences incident thereto, as clearly appears from the utterances in the following cases: James v. State, 104 Ala. 26, 16 So. 94; Stevens v. State, 156 Ala. 119, 47 So. 208. We approve the following utterances of the Supreme Court of North Dakota, speaking through Christianson, J.:
State v. Webb, 36 N.D. 235, 162 N.W. 358.
The rulings of the court on the demurrer to the indictment are free from reversible error.
Charge 5 was properly refused, as it does not hypothesize that the testimony of the witness was either willfully or corruptly false as to a material fact. Smith v. State, 75 So. 627; Burton's Case, 115 Ala. 1, 22 So. 585; Bouie v. State, 12 Ala.App. 33, 67 So. 619.
Charge 3 is argumentative, and was well refused for that reason, and, besides, the principle which this charge undertakes to state was well stated in given charge 6.
Given charge 21 and refused charge 18 are substantial duplicates, and it was not error to refuse the latter.
Charge 24 was properly refused. "A reasonable doubt, not arising from the evidence, or not existing in the face of the whole evidence, is not a proper predicate for an acquittal." McClain v. State, 182 Ala. 67, 62 So. 241; Buckhanon v. State, 12 Ala.App. 36, 67 So. 718; Collins v. State, 14 Ala.App. 54, 70 So. 995.
Charge 50 predicates the defendant's right to an acquittal on the absence of the intent to have sexual intercourse with the prosecutrix by force. The defendant was subject to a conviction for an assault, or assault and battery, under the indictment, and the charge was properly refused for this reason, if no other. Hutto v. State, 169 Ala. 19, 53 So. 809; Love v. State, 75 So. 189.
Charge 49, besides being argumentative, unduly emphasizes "the evidence bearing upon the previous relation" between the defendant and the prosecutrix. Hardeman v. State, 14 Ala.App. 35, 70 So. 979; Herring v. State, 14 Ala.App. 93, 71 So. 974; W.U.T. Co. v. Baker, 14 Ala.App. 208, 69 So. 246; B.R., L. & P. Co. v Donaldson, 14 Ala.App. 160, 68...
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Jackson v. State
...dismissal of Count 2 eliminated it from any further consideration. Sanders v. State, 278 Ala. 453, 179 So.2d 35 (1965); Barnett v. State, 16 Ala.App. 539, 79 So. 675, cert. denied, 202 Ala. 191, 79 So. 677 (1917). Therefore, we need only consider Counts 1 and In answer to appellant's argume......
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Lovejoy v. State
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Illinois Sur. Co. v. Donaldson
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Moore v. State, 6 Div. 939.
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