Opinion
7 Div. 310.
March 22, 1938. Rehearing Denied May 10, 1938.
Appeal from Circuit Court, Etowah County; Alto V. Lee, Judge.
Horace Tolbert was convicted of having carnal knowledge of a girl over twelve and under sixteen years of age, and he appeals.
Affirmed.
Certiorari denied by Supreme Court in Tolbert v. State, 236 Ala. 221, 181 So. 800.
Defendant's motion or plea alleged that the State, before the indictment in this case was preferred, elected to prosecute the defendant, for the same act charged in this indictment, under an indictment preferred November 7, 1935, charging rape; that defendant was arraigned under and pleaded to said indictment; that he was put upon a jury selected and impaneled to try said case, evidence was had, the case finally submitted to the jury, and the jury upon consideration thereof, failed to agree and a mistrial was entered; and that subsequent to said mistrial this indictment was preferred. It is plead that the State having elected to prosecute under said former indictment, defendant should not be put upon trial in the present case.
McCord McCord, of Gadsden, for appellant.
In the midst of a prosecution under an indictment, after arraignment and plea, after being put upon a jury and evidence being heard, there is no authority to prefer another indictment based upon the same physical act and thus maintain both prosecutions at one and the same time. A single crime cannot be split up into two or more indictable offenses, and the State is bound by its election previously made to prosecute under the first indictment. Const. 1901, § 9; Savage v. State, 18 Ala. App. 299, 92 So. 19; Gunter v. State, 111 Ala. 23, 20 So. 632, 56 Am.St.Rep. 17; 8 R.C.L. 145; 1 Bishop, Cr. Law, § 1060; Code 1923, § 5204. See Code, §§ 4550, 4551, 4555.
A. A. Carmichael, Atty. Gen., and Walter J. Knabe, Asst. Atty. Gen., for the State.
The second indictment is valid, and as long as the first indictment has not been concluded, defendant can be tried on the second indictment. Bell v. State, 115 Ala. 25, 22 So. 526; White v. State, 86 Ala. 69, 5 So. 674; Gibson v. State, 15 Ala. App. 12, 72 So. 569; Treadaway v. State, 18 Ala. App. 409, 92 So. 529; Id., 207 Ala. 715, 92 So. 922.
Appellant was indicted in September, 1936, for the offense of having carnal knowledge of a girl over twelve and under sixteen years of age.
It is from the judgment of conviction resulting on the trial under the above indictment that this appeal is taken.
Appellant pleaded in abatement of the indictment mentioned that he had, prior to the finding thereof, been indicted for rape — based upon the same sexual act serving as the basis of the latter indictment. The State's demurrers to this plea in abatement were sustained; thus posing the only question apparent on this appeal.
But there was no error. "It is not a good plea in abatement to an indictment upon which a defendant is being tried that there is another charge pending against the defendant for the same offense." Judge Pelham, in the opinion in the case of Gibson v. State, 15 Ala. App. 12, 72 So. 569, citing Bell v. State, 115 Ala. 25, 37, 22 So. 526. Much less, we might add, where the pending charge is of another and different offense — even though it could be assumed that it included the offense for which defendant was on trial.
The judgment is affirmed.
Affirmed.