Sims v. State

• Decision Date: 17 May 1906
• Citation: 41 So. 413,146 Ala. 109
• Parties: SIMS v. STATE.
• Court: Alabama Supreme Court

41 So. 413

146 Ala. 109

SIMS v. STATE.

Supreme Court of Alabama

May 17, 1906

Appeal from Circuit Court, Walker County; A. H. Alston, Judge.

"To be officially reported."

Walter Sims was convicted of crime, and appeals. Reversed and remanded.

The defendant was indicted for carnal knowledge or abuse in attempting to carnally know a girl under 10 years of age. To the indictment, after certain preliminary motions had been made, and considered and overruled by the court, the substance of which sufficiently appear in the opinion, the defendant interposed the following plea: "Comes the defendant, and for plea to the indictment in this cause says that he has been put upon trial heretofore, on, to wit, the 19th day of March, 1905, in the circuit court of Walker county, on a good and sufficient indictment, in words and figures as follows: 'State of Alabama, Walker County Circuit Court, Spring Term, 1905. The grand jury of said county charge that before the finding of this indictment Walter Sims did carnally know, or abuse in the attempt to carnally know, Ida Fowler, a girl under the age of fourteen years, against the peace and dignity of the state of Alabama'--together with the indorsements thereon. And the foregoing indictment was for the same offense on which he is now being tried, and that on said trial on said indictment the defendant says that the jury had been impaneled and sworn, and that evidence had been introduced by the state and the jury had been charged with his trial, and without his consent and without any pressing necessity said jury was discharged without rendering a verdict. Wherefore defendant says that he ought not be put on trial and in jeopardy again for this same offense. Wherefore asks that he be discharged from said cause." Duly verified. The solicitor demurred to this plea: "(1) Because said plea shows that the indictment set out therein is for a different offense to that charged against the defendant in this cause. (2) Because the plea shows that the indictment set out therein is void. (3) Because said plea fails to show that the defendant has been placed in jeopardy for the commission of the crime now charged against him in the indictment in this case." The court sustained the demurrer. The other facts necessary to an understanding of the opinion sufficiently appear therein.

The state requested the court to give the following written charges, which request the court granted: "(1) I charge you, gentlemen of the jury, that if you believe from all the evidence and beyond all reasonable doubt that the defendant attempted to have carnal knowledge with Ida Fowler, and at the time defendant attempted to have carnal knowledge with her, she was under the age of 10 years of age, and that there was an injury, though slight, to her sexual organs, caused by the defendant in his attempt to have carnal knowledge with Ida Fowler, then you should find the defendant guilty. (2) I charge you, gentlemen of the jury, that if you believe beyond a reasonable doubt, after considering all of the evidence in this case, that any part of the sexual organs of Ida Fowler were abused by the defendant in an attempt to have sexual intercourse with Ida Fowler, and that Ida Fowler at that time was under 10 years of age, then you should convict the defendant. (3) I charge you, gentlemen, that it is not necessary that there should be an actual penetration of the sexual organs of Ida Fowler by the defendant in his attempt to have carnal knowledge of Ida Fowler; but if you believe beyond a reasonable doubt, after weighing and considering all the evidence in this case, that the defendant attempted to have carnal knowledge with Ida Fowler, and in such attempt he abused or injured the inner or outer part of Ida Fowler's sexual organs, then you should convict the defendant."

The defendant requested the court to give the following written charges, which the court refused: "(13) The court charges the jury that in this case the evidence of the state shows that the only signs on the sexual organs of Ida Fowler were that her private parts looked a little red, and this evidence alone would not justify you in convicting the defendant. (14) The court charges the jury that the only evidence in this case of injury to the sexual organs of Ida Fowler is that her private parts looked a little red, and this is not sufficient to support a conviction under this indictment" "(22) I charge you, gentlemen, that the evidence on the part of the state that the private parts of Ida Fowler looked red like they had been pinched is not direct evidence that the sexual organs of Ida Fowler had been injured, and that the evidence of Ida Fowler herself that her sexual organs were not injured is direct evidence, and is entitled to more weight."

There was a conviction and sentence to the penitentiary for a period of 10 years.

McCullom & Leith, Gray & Coleman, and James J. Ray, for appellant.

Massey Wilson, Atty. Gen., for the State.

DOWDELL J.

The demurrer to the defendant's plea of former jeopardy was properly sustained. The indictment set out in this plea, on which it is alleged that the former jeopardy is predicated shows on its face that it was insufficient to support a judgment of conviction. In Oakley v. State, 135 Ala 15, 33 So. 23, it was said of a similar indictment that it was bad because it did not charge whether the person assaulted was over or under 10 years of age, and therefore failed to show whether the defendant was charged under section 5447 of the Code of 1896 as for a felony, or under section 5448 of the Code of 1896 as for a misdemeanor. Jeopardy will not arise on an indictment insufficient in law to support a judgment of conviction.

The act creating the office of supernumerary judge was held in Whatley v. State (Ala.) 39 So. 1014, not to be unconstitutional.

Therefore the objection of the defendant based on the supposed unconstitutionality of the act was without merit.

The motion to quash the indictment contained five grounds, but we need only refer to the fifth ground, as this was the only one attempted to be proven. In support of this ground, the defendant introduced in evidence a copy of the oath of office and the dueling oath...