Opinion
4 Div. 652.
June 30, 1941. Rehearing Denied October 7, 1941.
Appeal from Circuit Court, Coffee County; W.L. Parks, Judge.
John Jolly Mikell was convicted of rape, and he appeals.
Reversed and rendered.
Certiorari granted by Supreme Court in Mikell v. State, 242 Ala. 298, 5 So.2d 825.
The portion of the oral charge to which exception was reserved is as follows:
"In this case the defendant has interposed a plea of former jeopardy, which means, would mean — I take that back, I will just say that former jeopardy means, that the defendant has been tried and acquitted for the same offense cited in this case. Now if he was acquitted, and if the offense was committed in Houston County entirely, ended there, and he was tried for that and acquitted, then he could not be tried for that particular offense up here, for there is a statute which says that where a crime is begun in one County and completed in another either County has jurisdiction. But the State here contends, and I admitted that evidence of what occurred in Houston County not for the purpose of your basing a conviction upon that evidence, but upon the theory as I have just read to you here as to whether or not the acts and conduct of the defendant placed her in a state of fear in that County which continued into this County where he repeated the act of intercourse, under these circumstances that would be a different act, but so far as to her physical and mental attitude it may be the same, as the State insists it was, when she was attacked in Houston County; in other words, she was placed in fear there by physical acts of force. Then the question is what she did there, did she there, under those circumstances down there, if she had that condition, that breaking down of her resistance by threat or by force, putting her in fear, did that continue, her break-down of resistance and her fear to deny him here, when he demanded in this County. If so, then that would be sufficient to make that rape in this County. But you cannot convict him of what he did in Houston County alone, and he is not being tried for that offense; it is only for the purpose in aiding you in the determination of her mental attitude and her physical being at the time of her acts in this County. If that fear, that condition, brought about there as testified here by the doctor and by her, that physical condition existed right along from one County into the other, and there was fear resulting in her mind of him to such an extent that she was unable to resist his attempts, then that would be sufficient, that would be a constructive force in this County, and would make out and complete that element of the offense. So finding that these did not continue, or that she gave her consent voluntarily in this county, the acts and conduct of the parties in Houston County would have no effect upon it at all. That evidence is let in there for that purpose — to illustrate her condition, mental condition and physical condition when she came into this County respecting her fear of his demands or his conduct."
Carnley Carnley and J.C. Fleming, all of Elba, for appellant.
Defendant having filed a special plea of autrefois acquit, it was the duty of the court to submit to the jury separately, and in advance of the issue of not guilty, the question raised by said special plea. Parsons v. State, 179 Ala. 23, 60 So. 864; Evans v. State, 24 Ala. App. 390, 135 So. 647; State v. Nelson, 7 Ala. 610; Faulk v. State, 52 Ala. 415; Moody v. State, 60 Ala. 78; Henley v. State, 21 Ala. App. 218, 106 So. 893; Foster v. State, 39 Ala. 229; James v. State, 23 Ala. App. 119, 121 So. 690. It is a strict mandate of fundamental law that no person, for the same offense, be twice put in jeopardy of life or limb. Defendant's plea of former acquittal entitled him to discharge by the court. Constitution 1901, § 9; James v. State, supra.
Thos. S. Lawson, Atty. Gen., and John W. Vardaman, Asst. Atty. Gen., for the State.
The fact that there appears in the transcript no judgment of the court for the verdict of the jury on the issue raised by defendant's plea of autrefois acquit is, if error, harmless. 22 C.J.S., Criminal Law, §§ 442, 443, 446, a, b, 447.
On the trial below this appellant was convicted for the violation of Section 5407, of the Code 1923, Code 1940, Tit. 14, § 395. The offense being that of rape. From the judgment of conviction pronounced and entered, this appeal was taken.
From the view we take of this case we deem it essential and necessary to quote the testimony adduced upon the trial, more at length than is our custom.
It appears from the record, that on the night of December 10, 1939, this appellant went to the home of the woman, the alleged injured party, in Enterprise, Coffee County, Alabama, and he, appellant, invited her to go out with him. She accepted his invitation and the two left her home in an automobile, which car was owned and being driven by one Cecil Byrd, a witness in this case. These three people rode around in Enterprise and finally left there going to what was described as a "beer joint," over in Houston County, Alabama. At this place, said Byrd left the automobile and went into the beer joint. Appellant then drove the car around to the side of the beer joint building, and there, in the absence of Byrd, had sexual intercourse twice with the woman named. According to the testimony of the woman these acts of sexual intercourse were not voluntary on her part, but were forced upon her by the accused, who, she testified, choked her and threatened to kill her, and that this was done at the "beer joint" in Houston County.
After the second act of sexual intercourse between these people, said Byrd who had been on the inside of the "beer joint," carried them back to Enterprise and left them at the ball park, or airport, near the woman's home, and, he, Byrd, drove away. Thereupon the accused again, for the third time that night, had sexual intercourse with her. This last act of sexual intercourse was committed in Coffee County.
On February 22, 1940, the grand jury of Houston County, Alabama, found and returned an indictment into the circuit court of that county, against Mikell, appellant here, charging that before the finding of the indictment he forcibly ravished her. The indictment being in proper form and substance. On March 15, 1940, this man Mikell was tried in the circuit court of Houston County, for the offense of rape as charged in the above mentioned indictment. Upon that trial the woman, this alleged injured party, testified as a witness for the State as to the particularities of the three acts of sexual intercourse above mentioned, giving details of the act of sexual intercourse committed at Enterprise, in Coffee County, as well as the details of the two acts committed at or near, the "beer joint," in Houston County. On that trial the defendant, appellant here, was acquitted of the charge of having forcibly ravished said woman, in Houston County, Alabama, and judgment to that effect was duly pronounced and entered by said court.
On the 29th day of August, 1940, the grand jury of Coffee County, found and returned into the circuit court, an indictment charging him with rape of said woman in Coffee County, Alabama.
On October 21, 1940, Mikell, the defendant, in answer to said indictment filed his plea of not guilty, and autrefois acquit, duly verified as the law requires. Said plea of former jeopardy, set out as a part thereof a duly certified copy of the Houston County indictment, and also, a duly certified copy of the judgment of his acquittal of the charge contained in said indictment.
On October 25, 1940, appellant was put to trial on the Coffee County indictment. This record shows that the plea of former jeopardy was fully and conclusively proved by the defendant on this trial.
Section 4894 of the Code 1923, Code 1940, Tit. 15, § 94, declares that: "When an offense is committed partly in one county and partly in another, or the acts, or effects thereof, constituting, or requisite to the consummation of the offense occur in two or more counties, the jurisdiction is in either county."
The State elected to first indict and prosecute the defendant in Houston County for the ravishment complained of. Upon the trial in Houston County, the testimony tended to show, without dispute or controversy that if force was used, or fear and mental apprehension were engendered or aroused in the mind of the woman in question by the defendant, and that as a result thereof he had unlawful carnal knowledge of her, forcibly, and without her consent, then all of this occurred at the "beer joint" in Houston County, which under the Statute gave that county jurisdiction, although the actual sexual intercourse may have been committed in Coffee County.
In our opinion, under the testimony of the alleged injured woman, upon the trial of the defendant in Houston County, the defendant was in jeopardy of his life, or liberty for having unlawful carnal knowledge of her forcibly and without her consent at the ball park, or airport, in Enterprise, Coffee County, Alabama, and that his acquittal by the circuit court of Houston County, barred his prosecution for this identical offense the second time in Coffee County, Alabama, under the Coffee County indictment: Const. of Alabama, 1901, Art. I, Section 9, James v. State, 23 Ala. App. 119, 121 So. 690.
The oral charge to the jury in this case is contrary to and in conflict with the views of this court, hereinabove expressed, and the defendant appropriately and timely objected, and excepted to that portion of the oral charge that dealt with the defendant's plea of former jeopardy. In overruling and denying defendant's objection to said portion of the oral charge, the trial court committed reversible error.
Upon the trial of the case in the court below, it was the duty of the court to submit to the jury, separately and in advance of the issue of not guilty, the defendant's said plea of former jeopardy. This the court did not do, but submitted both issues to the jury at the same time. In the case of Evans v. State, 24 Ala. App. 390, 135 So. 647, 648, this court held, that before entering upon the trial of a criminal case where the defense of former jeopardy was interposed along with the plea of not guilty (as was done in the case at bar), it was necessary that such plea be tried separately and in advance of the plea of not guilty. This court further said: "In the case of Parsons v. State, 179 Ala. 23, 60 So. 864, the Supreme Court held: 'An issue of former jeopardy either of acquittal or conviction must be tried separately and in advance of the issue of not guilty, and this rule is not subject to waiver in a felony case.' " (Emphasis added.)
The defendant requested the trial court to give to the jury the following written charge, numbered 5: "I charge you that if you believe the evidence in this case you cannot convict the defendant." The court refused said charge and endorsed the same "Refused." In refusing to give said charge the trial court committed reversible error.
For the reasons hereinabove expressed the judgment of the trial court must be, and the same is, hereby reversed.
It is evident, that under the defendant's plea of former jeopardy he should not again be put upon trial to answer the Coffee County indictment. It is, therefore, ordered and adjudged by this court that the judgment of this court be here entered discharging the defendant from the charge contained in said indictment, and from further custody in this proceeding.
Reversed and rendered.