Tolbert v. State

Alabama Court of Appeals

Tolbert v. State

181 So. 800, 28 Ala. App. 209, 1938 Ala. App. LEXIS 132

CourtAlabama Court of Appeals

DecidedMarch 22, 1938

Docket7 Div. 310.

StatusPublished

Cited by4 cases

This text of 181 So. 800 (Tolbert v. State) is published on Counsel Stack Legal Research, covering Alabama Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Tolbert v. State, 181 So. 800, 28 Ala. App. 209, 1938 Ala. App. LEXIS 132 (Ala. Ct. App. 1938).

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Opinion

RICE, Judge.

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 rápe— based upon the same sexual act serving as the basis of the latter indictment. The ■State’s demurrers to this plea in abatemeiff were sustained; thus posing the only question apparent on this appeal.

But there was ño 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.

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RICE, Judge.

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 rápe— based upon the same sexual act serving as the basis of the latter indictment. The ■State’s demurrers to this plea in abatemeiff were sustained; thus posing the only question apparent on this appeal.

But there was ño 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.

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181 So. 800, 28 Ala. App. 209, 1938 Ala. App. LEXIS 132, Counsel Stack Legal Research, https://law.counselstack.com/opinion/tolbert-v-state-alactapp-1938.

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