Powell v. State
| Decision Date | 12 October 1904 |
| Citation | 82 S.W. 516 |
| Parties | POWELL v. STATE. |
| Court | Texas Court of Criminal Appeals |
Appeal from District Court, Jackson County; Wells Thompson, Judge.
Ed. Powell was convicted of rape, and he appeals. Reversed.
O. S. York, for appellant. Howard Martin, Asst. Atty. Gen., for the State.
Conviction of rape, the penalty assessed being eight years' confinement in the penitentiary. Bill of exceptions No. 1 shows that the first act of intercourse by defendant with prosecutrix was at prosecutrix's grandmother's, in the daytime, about June 21, 1903. The second act of intercourse by defendant with prosecutrix was about a week after the first act. The bill shows that several other acts of intercourse between defendant and prosecutrix were proven. Defendant moved the court to require the state to elect upon which one of the many acts of intercourse proved against appellant the state would rely and depend for conviction. The court overruled the motion, and permitted state's counsel in his argument before the jury to request a verdict of guilty upon all or any of the acts of intercourse by defendant with prosecutrix. This was error. Each act of intercourse being a separate, distinct, and substantive offense, the state should have been required to elect upon which act of intercourse the state would rely for conviction. This question was passed upon by this court in Batchelor v. State (Tex. Cr. App.) 55 S. W. 491. See, also, Earnest Stone v. State, 73 S. W. 956, 7 Tex. Ct. Rep. 560.
For the error discussed the judgment is reversed and the cause remanded.
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