Vaughn v. State, 25992

CourtMississippi Supreme Court
Writing for the CourtANDERSON, J.
Citation109 So. 727,143 Miss. 722
PartiesVAUGHN v. STATE. [*]
Decision Date11 October 1926
Docket Number25992

109 So. 727

143 Miss. 722

VAUGHN
v.
STATE. [*]

No. 25992

Supreme Court of Mississippi

October 11, 1926


Division B

APPEAL from circuit court of Prentiss county, HON. C. P. LONG, Judge.

John Vaughn was convicted of rape, and appeals. Affirmed.

Affirmed.

Friday & Windham, for appellant.

It seems to be settled law in charges of statutory rape, like the case at bar, that the prosecution is permitted to show as many separate and distinct acts of intercourse as it may desire; that each act so shown constitutes a separate and distinct offense upon each of which defendant may be separately tried and convicted; that when the indictment, as the one in the case at bar, contains but one count and charges but one act, the prosecution when it proceeds to show several separate and distinct acts of intercourse must at some stage of the trial elect upon which act it will rely for a conviction.

Authorities although agreed that there must be an election are not agreed as to the time when the prosecution is required to elect. One theory is that the prosecution is not required to elect the particular act upon which it will rely until the close of the case; another is that it should be made at the commencement of the trial. 22 R. C. L. 1227, art. 63.

The theory apparently adopted by this court is that when the prosecution at the commencement of the trial fails to inform defense, upon the proof of what specific offense the state intends to rely for a conviction, then the first evidence which would tend in any degree to prove an offense shall be deemed an election. Collier v. State, 106 Miss. 613 at 618. See, also, People v. Jennise, 5 Mich. 305; State v. Acheson, 91 Me. 240, 39 A. 570; State v. Hilberg, 22 Utah 27, 61 P. 215; People v. Williams, 133 Cal. 165, 65 P. 323; People v. Clark, 33 Mich. 112.

It is clear, in the case at bar, that the prosecution will be deemed to have elected to rely for a conviction upon the act which occurred in the little house on the date when prosecutrix and the defendant were caught by her mother. It is clear also that this act was not perpetrated and that the defendant as suggested in the second assignment of error, should be acquitted because of a variance between the charge in the indictment and the proof of the precise offense elected.

If wrong in our contention above, then surely in the case at bar, from the sweeping assertion of prosecutrix, that the defendant had intercourse with her lots of times, without any...

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1 practice notes
  • Shilling v. State, 25788
    • United States
    • Mississippi Supreme Court
    • October 11, 1926
    ...to a person, or of a thing to a thing. A personal servitude is the subjection of one person to another; if it consists in the right of [143 Miss. 722] property which a person exercises over another, it is slavery. When the subjection of one person to another is not slavery, it consists simp......
1 cases
  • Shilling v. State, 25788
    • United States
    • Mississippi Supreme Court
    • October 11, 1926
    ...to a person, or of a thing to a thing. A personal servitude is the subjection of one person to another; if it consists in the right of [143 Miss. 722] property which a person exercises over another, it is slavery. When the subjection of one person to another is not slavery, it consists simp......

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