Vaughn v. State., 25992

CourtMississippi Supreme Court
Citation109 So. 727,143 Miss. 723
Decision Date11 October 1926
PartiesVaughn v. State.[*]
Docket Number25992

109 So. 727

143 Miss. 723


No. 25992

Supreme Court of Mississippi

October 11, 1926

(Division B.)

CRIMINAL LAW. Failure to require election between acts of intercourse held not available on appeal, where defendant obtained instructions assuming conviction could be on any act.

Defendant in rape may not complain on appeal that jury were not confined to consideration of one act of intercourse, he having

made no request to require election, but obtained instructions assuming it would be duty to convict, if any act of intercourse was sufficiently proven.

HON. C. P. LONG, Judge.

John Vaughn was convicted of rape, and appeals. 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, [143 Miss. 724] 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...

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