Smith v. State, 5 Div. 525
| Decision Date | 23 November 1951 |
| Docket Number | 5 Div. 525 |
| Citation | 55 So.2d 208,256 Ala. 444 |
| Parties | SMITH v. STATE. |
| Court | Alabama Supreme Court |
J. A. Walker, Jacob, Walker, Jr., and Walker & Walker, Opelika, for petitioner.
Si Garrett, Atty. Gen., and Thos. M. Galloway, Asst. Atty. Gen., opposed.
It is argued on petition for certiorari that the opinion of the Court of Appeals is contrary to the decision of this court in this same case. Referring to Smith v. State, 34 Ala.App. 45, 38 So.2d 341, the holding was to the effect that the plea in abatement taken to be true on demurrer, shows that the indictment was subject to the grounds of demurrer raising the point that the grand jury which found the indictment was not drawn in the presence of the officers, as required by law, thereby subjecting the indictment to be invalidated. In Smith v. State, 253 Ala. 277, 44 So.2d 250, on the authority of Ex parte Spivey, 175 Ala. 43, 57 So. 491, it was held by this court that the defendant could not again be put in jeopardy on an indictment for carnal knowledge. Under the Spivey case, supra, if an indictment is returned by a grand jury not drawn in accordance with law, the judgment on that indictment is not avoided but remains in full force until avoided in a proper manner either on motion in arrest of judgment or reversal on appeal. Berry v. State, 65 Ala. 117.
In Smith v. State, 253 Ala. 277, 44 So.2d 250, 252, it was held by this court that the verdict and judgment after trial on the indictment, which might be held invalid, is not referable to defects in the organization of the grand jury, since the indictment was not quashed, but that defendant was put on trial on the facts 'and the jury acquitted [him] * * *, not on account of the defect in the indictment, but on the merits of the case.' It was concluded that former jeopardy as regards to trial on the indictment would be good.
We consider that the real question now before the court is whether or not the defendant who is tried on a valid indictment for carnal knowledge and the jury convicts him under the charge of the court of assault with intent to rape, can later be put on trial for assault with intent to rape? We do not think that the case at bar presents a situation where former jeopardy is presented.
The test to ascertain former jeopardy is whether the facts alleged in the indictment for the latter offense, if proved to be true, would warrant a conviction on the first indictment. Foster v. State, 39 Ala. 229, 233; Gordon v. State, 71 Ala. 315. In order to prove the defendant guilty of carnal knowledge or abuse in the attempt to have carnal knowledge of a girl under twelve years of age--the offense for which defendant was first indicted--it is necessary for the state ot prove, among other things, the age of the child and physical abuse to the genital organs. Hutto v. State, 169 Ala. 19, 53 So. 809; Dawkins v. State, 58 Ala. 376. In the case of Montgomery v. State, 28 Ala.App. 442, 186 So. 589, 591, it was said: 'To sustain a conviction in this case, there must be an attempt to carnally know the child and an injury to its private parts, and these things must be proven beyond a reasonable doubt.'
Under an indictment for assault with intent to ravish (the indictment in the present case), there is no requirement of proof of physical abuse to the genital organs and the age of the female is immaterial.
In the case of Hall v. State, 134 Ala. 90, 32 So. 750, the defendant was first tried for rape and acquitted, and then for seduction. The court held that former jeopardy was not available as a proper plea of defendant under the general rule of former jeopardy. The principle here under consideration was illustrated in Hanson v. State, 27 Ala.App. 147, 168 So. 698, certiorari denied 232 Ala. 585, 168 So. 700, 701. In that case it was said:
'It is also claimed that this defendant cannot be convicted on account of any conspiracy to manufacture whiskey, which the evidence may show in this record, since his guilt of murder was also dependent upon the same conspiracy, and his acquittal of murder was an acquittal of a charge of conspiracy to manufacture whiskey.
...
To continue reading
Request your trial
-
Parrish v. State
..."in the frame of the age of the assaulted girl." Smith v. State, 36 Ala.App. 209, 213, 55 So.2d 202 (1951), cert. denied, 256 Ala. 444, 55 So.2d 208 (1951). Viewing the above "totality of circumstances" from the point of view of the 12-year-old victim, it is apparent that the jury correctly......
-
Wildman v. State
...this, a reliance is had upon the cases of Gordon v. State, 71 Ala. 315, Bowen v. State, 106 Ala. 178, 17 So. 335, and Smith v. State, 256 Ala. 444, 55 So.2d 208. To find that which the court had to decide in the Gordon case, we examined the original record of our Supreme Court. George Gordo......
-
Reynolds v. State
...carnal knowledge, is the abuse to which the statute refers. See: Huggins v. State, 271 Ala. 428, 434, 123 So.2d 911; Smith v. State, 256 Ala. 444, 446, 55 So.2d 208; Lee v. State, 246 Ala. 69, 71, 18 So.2d 706; James v. State, 246 Ala. 617, 619, 21 So.2d 847; Hutto v. State, 169 Ala. 19, 20......
-
Racine v. State
...former offense. Blevins v. State, 20 Ala.App. 229, 101 So. 478, cert. denied Ex parte Blevins, 211 Ala. 615, 101 So. 482; Smith v. State, 256 Ala. 444, 55 So.2d 208. 'Vagrancy, albeit an overbroad offense, is not constituted by possession of contraband. Vagrancy and possession of marijuana ......