Swint v. State, 5 Div. 900

Decision Date14 August 1984
Docket Number5 Div. 900
Citation455 So.2d 285
PartiesHenry Lewis SWINT v. STATE.
CourtAlabama Court of Criminal Appeals

Donald M. Phillips, Lanett, for appellant.

Charles A. Graddick, Atty. Gen., and Martha Gail Ingram, Asst. Atty. Gen., for appellee.

BOWEN, Presiding Judge.

Henry Lewis Swint was indicted and convicted for rape in the first degree. Alabama Code (1975), § 13A-6-61. He was sentenced as an habitual offender to life imprisonment without parole. Four issues are argued on appeal.


The indictment charged that "Swint, and James Curtis Martin, ... did engage in sexual intercourse with ... [the prosecutrix], a female, by forcible compulsion." Swint argues that only one rape is charged and two persons cannot be guilty of a single joint rape. Clayton v. State, 244 Ala. 10, 12, 13 So.2d 420 (1942). He also argues that the indictment is duplicitous because it charges two separate offenses.

The evidence shows that both Swint and Martin raped the prosecutrix as part of one plan and as part of a single transaction. The joinder of both defendants was proper under Rule 15.4(a)(ii) and (iii), A.R.Cr.P.Temp., which provides that "(t)wo or more defendants may be charged in the same indictment, ... (ii) when the several offenses are part of a common conspiracy, scheme, or plan; or (iii) when the several offenses are otherwise so closely connected that it would be difficult to separate the proof of one from the proof of the other."

Moreover, the motion to dismiss and quash the indictment challenging the legal sufficiency of the indictment was filed after arraignment and was late. Rule 16.3(a)(1), A.R.Cr.P.Temp. This motion was filed more than seven days after arraignment and was therefore untimely under Rule 15.4(f).


The trial judge properly admitted Swint's statement to the police. The rapes occurred on the evening of June 7, 1983. Swint was arrested the next day and advised of his Miranda rights. When asked if he wanted to talk, Swint responded that he "had nothing to say." He was transported to the police department and again informed of his constitutional rights. Because Swint could neither read nor write, a printed waiver of rights form was read to him three times and he "verbally acknowledged waiver every time."

When an accused invokes his right to counsel, no further interrogation is permitted until counsel is made available or until the accused "initiates further communication, exchanges or conversation with the police." Edwards v. Arizona, 451 U.S. 477, 101 S.Ct. 1880, 68 L.Ed.2d 378 (1981). The present case does not involve the procedures to be followed if the person in custody asks to consult with a lawyer, since Swint made no such request at any time.

Michigan v. Mosley, 423 U.S. 96, 96 S.Ct. 321, 46 L.Ed.2d 313 (1975), held that Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), does not "create a per se proscription of indefinite duration upon any further questioning by any police officer on any subject, once the person in custody has indicated a desire to remain silent." 423 U.S. at 102-03, 96 S.Ct. at 326. "The admissibility of statements obtained after the person in custody has decided to remain silent depends under Miranda on whether his 'right to cut off questioning' was 'scrupulously honored.' " Mosley, 423 U.S. at 104, 96...

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15 cases
  • King v. State
    • United States
    • Alabama Court of Criminal Appeals
    • September 21, 1990
    ...Appellant contends that the correct form was not used to show that penetration occurred. As this court stated in Swint v. State, 455 So.2d 285, 286 (Ala.Cr.App.1984): "[The] nature of the penetration that is essential for a rape conviction need not be proved in any particular form of words.......
  • Watson v. State, 5 Div. 56
    • United States
    • Alabama Court of Criminal Appeals
    • September 8, 1987
    ...stuck the private thing in my private." The nature of penetration need not be proved in any particular form of words. Swint v. State, 455 So.2d 285, 287 (Ala.Cr.App.1984). II During the presentation of its case, the prosecution introduced testimony from the prosecutrix's mother of prior sex......
  • Williams v. State, 6 Div. 603
    • United States
    • Alabama Court of Criminal Appeals
    • October 11, 1988
    ...nature of the penetration that is essential for a rape conviction need not be proved in any particular form of words." Swint v. State, 455 So.2d 285, 287 (Ala.Cr.App.1984). See also Fisher v. State, 480 So.2d 6, 7-8 Here, on direct examination, T.S. testified that the defendant "put his pen......
  • State v. Artis
    • United States
    • Connecticut Supreme Court
    • February 11, 1986
    ...Proof of penetration need not take any particular form and may be proved by circumstantial evidence. Swint v. State, 455 So.2d 285, 287 (Ala.Crim.App.1984); Beckley v. State, supra; State v. Golden, 430 A.2d 433, 436 (R.I.1981). "When one of understanding testifies to a completed act of sex......
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