Mikell v. State
Decision Date | 06 November 1941 |
Docket Number | 4 Div. 233. |
Citation | 5 So.2d 825,242 Ala. 298 |
Parties | MIKELL v. STATE. |
Court | Alabama Supreme Court |
Rehearing Denied Jan. 29, 1942.
Certiorari to Court of Appeals.
Thos. S. Lawson, Atty.Gen., John W. Vardaman, Asst Atty. Gen, and J. Alex. Huey, Circuit Sol., of Enterprise for petition.
Carnley & Carnley and J.C. Fleming, all of Elba, opposed.
The Court of Appeals has reversed the judgment of conviction against one John Jolly Mikell for the offense of rape upon two grounds, each of which, however, bears relation to the plea of autrefois acquit filed in the cause by said defendant.
The first ground relates to the exception to the oral charge of the court and the second to the action of the court in failing to submit to the jury the plea of autrefois acquit separately from that of the general issue. We are unable to concur.
The girl in this case, the alleged victim of the assault insisted, as the opinion of the Court of Appeals discloses, that the two acts of sexual intercourse which took place in Houston County were the result of the threats and intimidations on the part of the defendant accompanied by physical violence. She insists he choked her and threatened her life.
The defendant was acquitted of these alleged offenses in Houston County. But rape is not a continuous offense and each act of intercourse constitutes a separate and distinct offense. 52 C.J. 1007. Following these acts of intercourse in Houston County it appears that in a short period of time upon return to Enterprise in Coffee County, Alabama, the defendant again had intercourse with the girl, and the State insisted that under the evidence the question of consent was one for the jury. The trial in Coffee County resulted in a conviction from which judgment the appeal is prosecuted.
All of these facts appear more fully in that part of the oral charge of the court to which exception was reserved and by the Court of Appeals held erroneous. It reads as follows:
.
This charge of the court clearly demonstrates the theory which the State was presenting, that is, that if the jury believed the third act of sexual intercourse, which had admittedly taken place in Coffee County, was the result of fear or coercion and the weakened condition of the alleged victim brought about by the threats of the defendant and the violence upon her person, a short time previous in Houston County, then the offense of rape would properly be made out for this third act of intercourse in Coffee County.
As each act of intercourse constitutes a separate offense we can see no objection to that portion of the oral charge of the court to which exception was reserved.
It was pointed out in Brown v. City of Tuscaloosa, 196 Ala 475, 71 So. 672, 673, citing Freeman's notes found in 92 Am.St.Rep. 107, that it is immaterial that the evidence relied upon to support the second charge was, in fact, introduced on the trial of the first. The criterion is not what testimony was introduced, but what might have been, and the determinative feature is whether the facts alleged in one charge would support a...
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Story v. State, 5 Div. 659
...availed her nothing had there been a hearing. Therefore, appellant's rights were not prejudiced requiring reversal. Mikell v. State, 242 Ala. 298, 5 So.2d 825 (1941). Additionally, appellant made no objection to proceeding without a hearing on the motion. Her complaint that she was not affo......
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