Jones v. State, 6 Div. 316
| Citation | 277 So.2d 920,50 Ala.App. 174 |
| Decision Date | 15 May 1973 |
| Docket Number | 6 Div. 316 |
| Parties | John Henry JONES, Jr. v. STATE. |
| Court | Alabama Court of Criminal Appeals |
Demetrius C. Newton, Birmingham, Jack Greenberg, Jack Himmelstein, Elaine R. Jones and Lynn Walker, New York City, for appellant.
William J. Baxley, Atty. Gen., and Herbert H. Henry, Asst. Atty. Gen., for the State.
Appellant was convicted of rape and his punishment fixed at death.
Prior to his trial for rape, appellant was convicted of robbery growing out of the same occurrence. His punishment on the robbery conviction was likewise fixed at death. On April 17, 1973, this Court modified and affirmed that conviction and fixed appellant's punishment at life imprisonment. Jones v. State, 50 Ala.App. 62, 276 So.2d 647.
Appellant states in brief that 'the only real evidentiary difference in the two cases is the personal physician of the prosecutrix testified in the case at bar.' This is true. Therefore, we incorporate by reference the factual background as set forth in the robbery case.
Most of the issues raised on this appeal were raised on direct appeal in the robbery case, supra, and were decided adversely to the contentions of appellant. We will here deal with matters not presented in that case.
In the court below appellant filed a motion to quash the venire and the indictment on the grounds of systematic exclusion of members of the Negro race who were qualified to serve on juries in the Birmingham Division of Jefferson County in violation of the Equal Protection and Due Process Clauses of the Fourteenth Amendment. The evidence in support of this motion was the entire transcript of the evidence presented at an evidentiary hearing held in December, 1970, in the case of Richardson v. Wilson, C.A. 68--300, (N.D.Ala.), Allgood, J., which was a civil suit challenging the jury selection process in the Birmingham Division of Jefferson County. In brief, appellant states that the evidence in the above transcript is the same evidence presented in support of the motion to quash the indictment in the case of Richardson v. State, 46 Ala.App. 277, 241 So.2d 119. In Richardson this Court ruled such evidence insufficient to shift the burden of proof to the State.
Appellant filed a motion for change of venue but concedes that a ruling thereon was not invoked. Where no ruling of the court is shown by the record, nothing is presented for review. Parson v. State, 39 Ala.App. 142, 96 So.2d 206; Reeves v. State, 39 Ala.App. 164, 98 So.2d 857.
Appellant then filed a motion to dismiss the charges against him on the grounds of former jeopardy alleging that he was previously tried and convicted in the Circuit Court of Jefferson County, Alabama, Case Number 20343 (robbery), and that to try him in Case Number 20342 (rape) would be double jeopardy. The trial court overruled this motion. There was no error in this ruling of the court. Robbery and rape are two separate and distinct offenses and are completely unrelated. To successfully plead former jeopardy, the plea must allege that the offense charged in the two prosecutions is the same in law and fact. Shirley v. State, 35 Ala.App. 639, 51 So.2d 702; Green v. State, 37 Ala.App. 610, 73 So.2d 387.
The prosecutrix testified in great detail as to the facts concerning the rape and the abuse and physical mistreatment of her body by...
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...determine that such oral motion unaccompanied by proof was insufficient to shift the burden of proof to the State. Jones v. State, 50 Ala.App. 174, 277 So.2d 920; Acoff v. State, 50 Ala.App. 206, 278 So.2d 210; White and Watson v. State, 48 Ala.App. 111, 262 So.2d Moreover, this Court most ......
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