Harris v. State
| Decision Date | 06 June 1911 |
| Citation | 56 So. 55,2 Ala.App. 116 |
| Parties | HARRIS v. STATE. |
| Court | Alabama Court of Appeals |
Appeal from City Court of Gadsden; A. H. Alston, Judge.
Seaborn Harris was convicted of rape, and appeals. Reversed.
W. H Standifer and George D. Motley, for appellant.
R. C. Brickell, Atty. Gen., for the State.
DE GRAFFENRIED, J.
Section 1221 of the Code of 1907 provides that no judgment of acquittal or conviction rendered by a recorder shall be a bar to a prosecution by the state in any case where the facts or offense charged constitute a felony under the laws of the state of Alabama. It was the manifest purpose of the Legislature, when it adopted the above provision, to free the state from any embarrassment, in a prosecution for a felony that might arise because of a conviction or acquittal by a recorder of the defendant of a misdemeanor or of a violation of a municipal ordinance which is a misdemeanor under the laws of the state, and which might, in any way, have been involved in or have formed a part of the felony. The defendant's conviction by the mayor of the city of Gadsden was therefore not pleadable as a defense to this indictment.
To sustain an indictment for rape, there must be actual penetration. Waller v. State, 40 Ala. 325.
One who by force, and against the consent of a female, has sexual intercourse with her, is guilty of rape. Lewis v State, 35 Ala. 380; Waller v. State, supra.
The prosecutrix, Emma Henderson, testified that the defendant, by force and against her will, had two successive acts of sexual intercourse with her on the night of November 13th. She further testified that a few days afterwards the defendant was tried in the mayor's court of Gadsden for assaulting her. She was asked by the defendant if she did not testify on his trial before the mayor, that he had simply assaulted her and that he had not had sexual intercourse with her on the occasion referred to. She answered that she did not so testify, that no question was asked her about sexual intercourse, and that she had said nothing on the subject. The defendant offered to prove by the chief of police of Gadsden that he was present at said trial before the mayor of Gadsden; that he heard said Emma Henderson testify in said case; and that she did swear on said trial that defendant had simply assaulted her, and that he did not have sexual intercourse with her. The court refused to allow the defendant to make this proof,...
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