Handy v. State

• Decision Date: 16 May 1899
• Citation: 121 Ala. 13,25 So. 1023
• Parties: HANDY v. STATE.
• Court: Alabama Supreme Court

25 So. 1023

121 Ala. 13

HANDY v. STATE.

Supreme Court of Alabama

May 16, 1899

Appeal from circuit court, Elmore county; N. D. Denson, Judge.

Virge Handy was convicted of rape, and he appeals. Affirmed.

The verdict of the jury was: "We, the jury, find the defendant guilty as charged, and fix the punishment at ten years in the penitentiary." On the trial of the case when the case was called for trial, the defendant "moved the court to quash the venire on the ground that the list of names of jurors that was served on him by the sheriff was not signed by the sheriff, which motion the court overruled, and the defendant duly excepted to the ruling of the court. The defendant then announced 'Ready,' and the selection of the jury was proceeded with. When the name of Whit Herron was called, he did not answer, and it was shown to the court that said Whit Herron was a juror on the regular venire for the week, and that he was in the jury room at the time considering, with eleven other jurors, a case of assault with intent to murder, which was submitted to them before this case was called, and which had not been completed. Thereupon defendant demanded and moved that said juror be brought in and put on the state and defendant for acceptance or rejection. The court overruled the motion, and ordered the drawing of jurors to proceed. To this action of the court the defendant excepted duly. The jury of which Whit Herron was a member did not come in until after the jury in Handy's case had been selected." The evidence as set forth in the bill of exceptions is copied in the opinion. The defendant requested the court to give to the jury the following written charges, and separately excepted to the court's refusal to give each of them as asked: (1) "The court charge the jury that if they believe, under the evidence in this case, the girl was over ten years of age, but under fourteen, and they further believe from the evidence that she consented to the act, then they may find him guilty under the second count in the indictment, and must assess a fine of not less than fifty nor more than five hundred dollars." (2) "The court charge the jury that if they believe from all the evidence the girl consented to the unlawful act, and if they further find from the evidence the girl was over the age of ten years, they must acquit the defendant."

Charles G. Brown, Atty. Gen., for the State.

SHARPE J.

The indictment contains two counts,-the first charging that the defendant "forcibly ravished Annie Bell McCall, a woman in said county and state." The second count charges that he "did carnally know, or abuse in the attempt to carnally know, Annie Bell McCall, a girl under the age of 14 years." The second count is evidently drawn under the terms of section 5447 of the Code. That section received its present form from the joint committee in framing the present Code; its intention being to change section 3739 of the Code of 1886 so as to make the offense described in that section apply when the age of the girl was under 14 years, instead of confining it to cases where the age was under 10 years, as by the former statute, and also to reduce the minimum term of imprisonment to 10 years, instead of for life. On the 15th day of February, 1897, the act was approved by which the same criminal act committed upon a girl between the ages of 10 and...