Opinion
6 Div. 785.
May 7, 1935. Rehearing Denied June 4, 1935.
Appeal from Circuit Court, Blount County; J. F. Thompson, Judge.
Alex Cheatwood was convicted of assault, and he appeals.
Affirmed.
Certiorari denied by Supreme Court in Cheatwood v. State, 230 Ala. 574, 162 So. 404.
P. A. Nash, of Oneonta, for appellant.
Testimony seeking to connect the defendant with the commission of the offense charged by proof of circumstances tending to show a different offense of a similar nature at a subsequent time is not admissible when the state has introduced evidence showing the commission of the offense charged, and the defendant's guilty connection therewith, by direct positive testimony of a specific act, which in itself constitutes the crime charged and the defendant's commission thereof. Baker v. State, 19 Ala. App. 437, 97 So. 901; Ex parte State ex rel. Attorney General, 210 Ala. 320, 97 So. 903; Ingram v. State, 39 Ala. 247, 84 Am.Dec. 782.
A. A. Carmichael, Atty. Gen., and Jas. L. Screws, Asst. Atty. Gen., for the State.
The whole affair was one continuous transaction, and all of the evidence, both as to the first assault and as to the second, was admissible as part of the res gestæ. The res gestæ is not confined to the act charged, but includes acts, statements, occurrences, and circumstances forming a part or continuation of the main transaction. 16 C.J. 537; Hardeman v. State, 14 Ala. App. 35, 70 So. 979; Collins v. State, 138 Ala. 57, 34 So. 993; Williams v. State, 21 Ala. App. 227, 107 So. 37; Sweeney v. State, 25 Ala. App. 220, 143 So. 586; Id., 225 Ala. 381, 143 So. 588.
The defendant was indicted on a charge of assault to ravish and on the trial he was convicted of a simple assault.
When the prosecuting witness was being examined she first testified to seeing the defendant in front of or near his house, at which time he approached her, made a proposal to her, and took her by the hand against her will; held on to her until a car approached them on the road, when defendant released her. All of this testimony was without objection or exception. Witness then testified that she went on up the road and that defendant followed her to a point near Oak Grove Church, where he caught her, forced her to drink some whisky, and then under threat from defendant that he would choke her if she didn't do as he said, she went off down in some thick woods with him; that he pulled off his overcoat, spread it on the ground, and told her to lie down on it, which she did, because she was afraid; that when she lay down on the overcoat she put her hands over her head and remembers nothing else until they were back on the road. She testifies: "I must have passed out and I don't remember anything else until we were back on the road. After I put my hands over my head I don't know what happened after that."
The defendant moved for an election claiming that there were two assaults, and objected to all of the testimony as to what transpired in the woods near the church.
The foregoing presents no case for an election, but was one continuing transaction culminating with the "passing out" of the witness down in the woods near the church. 16 Corpus Juris, 537.
Charges refused to defendant were either bad or the principles of law involved were covered by the court in his general charge.
There is no error of a reversible nature, and the judgment is affirmed.
Affirmed.