Opinion
4 Div. 749.
May 19, 1931. Rehearing Denied June 30, 1931.
Appeal from Circuit Court, Coffee County; W. L. Parks, Judge.
Sam Simmons was convicted of assault and battery, and he appeals.
Affirmed.
Certiorari denied by Supreme Court in Simmons v. State, 223 Ala. 450, 137 So. 44.
The indictment charges: (1) Carnal knowledge of N.M., "a girl under the age of twelve years"; (2) assault of N.M., "a girl under the age of twelve years," with intent to forcibly ravish her; and (3) assault of N.M., "a girl," with intent to forcibly ravish her.
The bill of exceptions shows that in his argument to the jury the attorney for the state said: "I am glad the law has taken its course in this case otherwise it might have resulted in murder, or some other serious offense." Defendant's objection to said remark and motions to exclude and to withdraw the case from the jury were overruled.
M. A. Owen, of Elba, and M. S. Carmichael, of Montgomery, for appellant.
For offenses to be joined, they must be of the same general character of crime, and the mode of trial and nature of punishment the same. Code 1923, § 4546; Lewis v. State, 4 Ala. App. 141, 58 So. 802; Jones v. State, 17 Ala. App. 283, 84 So. 627. The argument of the solicitor contained a threat of mob violence; it should have been excluded.
Thos. E. Knight, Jr., Atty. Gen., and Jas. L. Screws, Asst. Atty. Gen., for the State.
It is competent for the solicitor, with the consent of the court, to enter a nol. pros. as to one or more counts of the indictment. Jackson v. State, 21 Ala. App. 284, 107 So. 725; Williams v. State, 130 Ala. 31, 30 So. 336; Salm v. State, 89 Ala. 56, 8 So. 66. It was proper to join the counts in the same indictment. Thomas v. State, 111 Ala. 51, 20 So. 617; Lewis v. State, 4 Ala. App. 141, 58 So. 802; Lucas v. State, 144 Ala. 63, 39 So. 821, 3 L.R.A. (N.S.) 412; Jones v. State, 17 Ala. App. 283, 84 So. 627; Grimes v. State, 105 Ala. 86, 17 So. 184. Any error in ordering a special venire was cured by the verdict. Brewington v. State, 19 Ala. App. 409, 97 So. 763. Error cannot be predicated upon the ruling on defendant's objection to argument of the solicitor. Windom v. State, 18 Ala. App. 431, 93 So. 79.
Appellant was convicted of the offense of assault and battery, and his punishment fixed at the assessment of a fine of $100.
The original indictment, under which he was tried, consisted of three counts, one of same charging him with the commission of a capital offense. But, before entering upon the trial, the solicitor, with the consent of the court, entered a nolle prosequi as to this count. This action was permissible. Jackson v. State, 21 Ala. App. 284, 107 So. 725; Williams v. State, 130 Ala. 31, 30 So. 336; Salm v. State, 89 Ala. 56, 8 So. 66.
The counts left in the indictment charged, separately, offenses of the same general nature, belonging to the same family of crimes, and of which the mode of trial and nature of the punishment were the same. The demurrers to the indictment, resting largely upon the grounds of a misjoinder of offenses, etc., were properly overruled. Thomas v. State, 111 Ala. 51, 20 So. 617; Lewis v. State, 4 Ala. App. 141, 58 So. 802; Lucas v. State, 144 Ala. 63, 39 So. 821, 3 L.R.A. (N.S.) 412.
The verdict of the jury finding appellant guilty of only assault and battery, no harm was worked to him by the refusal to allow a special venire, even though it be conceded that the second count of the indictment charged an offense which might have been punished capitally. Code 1923. § 5410; Brewington v. State, 19 Ala. App. 409, 97 So. 763.
The exceptions reserved on the taking of testimony have each been examined. They involve rulings of no material importance and which do not appear to be erroneous. No reversal will be predicated on any of same.
The portion of the argument of the solicitor, objected to, amounted to nothing prejudicial to appellant.
We find nowhere prejudicial error, and the judgment of conviction is affirmed.
Affirmed.