56 So. 55 | Ala. Ct. App. | 1911
Section 1221 of the Code of 1907 provides that no judgment of acquittal rendered by a recorder shall be a bar to a prosecution by tbe state in any case where tbe facts or offense charged constitute a felony under tbe laws of the state of Alabama. It was tbe manifest purpose of tbe Legislature, when it adopted tbe above provision, to free tbe state from any embarrassment, in a prosecution for a felony, that might arise because of a conviction or acquittal by a recorder of the defendant of a misdemeanor or of a violation of a municipal ordinance which is a misdemeanor under the laws of tbe state, and which might, in any way, have been involved in or have formed a part of tbe felony. Tbe defendant’s conviction by tbe mayor of the city of Gadsden was therefore not pleadable as a defense to this indictment.
To sustain an indictment for rape, there must be an actual penetration.—Waller v. State, 40 Ala. 325.
One. who by force, and againsnt the consent of a female, lias sexual intercourse with her, is guilty of rape.—Lewis v. State, 35 Ala. 380; Waller v. State, supra.
Tbe prosecutrix, Emma I-Iendersou, testified that the defendant, by force and against her will, bad two successive acts of sexual intercourse with her on tbe night of November 13th. She further testified that a few days afterwards tbe defendant, was tried in the mayor’s court of Gadsden for assaulting her. She was asked by the defendant if she did not testify, on his trial before the mayor, that he had simply assaulted her and that he had not had sexual intercourse with her on the occasion referred to. She answered that she did not so testify, that no question was asked her about sextial intercourse, and that she had said nothing on the subject. The de
For the error pointed out, this cause is reversed and remanded.
Reversed and remanded.