Free v. State, 36 So. 2d 250 (Ala. Ct. App. 1948). · Go Syfert
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Free v. State, 36 So. 2d 250 (Ala. Ct. App. 1948). Cases Citing This Book View Copy Cite
5 citation events across 2 distinct courts.
Strongest positive: Blackshear v. State (alactapp, 1950-05-09)
Top citers, strongest first. 1 distinct citer. How cited ↗
cited Cited "see" Blackshear v. State
Ala. Ct. App. · 1950 · signal: see · confidence high
See Blackshear v. State, 33 Ala.App. 576 , 36 So.2d 244 , certiorari denied, 251 Ala. 11 , 36 So.2d 250 .
Retrieving the full opinion text from the archive…
Free
v.
State.
5 Div. 263..
Alabama Court of Appeals.
Jun 18, 1948.
36 So. 2d 250
Geo. P. Howard, of Wetumpka, for appellant. Force is an indispensable element of rape, and consent, at any time before penetration, is a defense. In this case there was no resistance and no force. Code 1940, Tit. 14, §§ 396, 398; Almon v. State, 21 Ala. App. 466 , 109 So. 371 ; Shepherd v. State, 135 Ala. 9 , 33 So. 266 . Consent may be implied. McQuirk v. State, 84 Ala. 435 , 4 So. 775 . Appellant is entitled to be released on bail. Code, Tit. 15, § 195; Ex parte Bryant, 34 Ala. 270 ; Ex parte Carson, 17 Ala. App. 345 , 85 So. 827 ; Clark v. State, 28 Ala. App. 448 , 186 So. 778 ; Culbert v. State, 23 Ala. App. 557 , 129 So. 315 . A. A. Carmichael, Atty. Gen., and Bernard F. Sykes, Asst. Atty. Gen., for the State. Since appellant is charged with the common-law crime of rape, it is necessary to prove the act was accomplished forcibly and without consent of female when she is over age of twelve years. Code 1940, Tit, 14, § 395; Owens v. State, 29 Ala. App. 53 , 191 So. 899 ; Jones v. State, 90 Ala. 628 , 8 So. 383 , 24 Am.St.Rep. 850. The decree of the trial judge, reciting his judgment was based upon observation, and testimony given orally before him. It should not be disturbed. State v. Stallings, 26 Ala. App. 576 , 164 So. 119 ; State v. Lacy, 158 Ala. 16 , 48 So. 343 ; Lewis v. Crowell, 210 Ala. 199 , 97 So. 691 ; Butler v. State, 1 Ala. App. 265 , 56 So. 20 .
Harwood.
Cited by 1 opinion  |  Published
HARWOOD, Judge.

This is an appeal from a decree of the lower court denying appellant’s petition for a writ of habeas corpus, and remanding him to the custody of the Sheriff of Elmore County. The appellant is held by the Sheriff on a warrant and affidavit charging rape.

The alleged ravished girl is thirteen years of age. Section 16 of our Constitution of 1901 provides: “That’all persons shall, before conviction, be bailable by sufficient sureties, except for capital offenses, when the proof is evident or the presumption great; and that excessive bail shall not in any case be required.”

We have carefully considered en banc the picture presented by the evidence contained in this record. If the State’s evidence be believed under the required rule it tends •clearly to make out a case of carnal knowledge of a girl over twelve and under sixteen years of age, an offense denounced by Section 399, Title 14, Code of Alabama 1940.

The evidence is not, in our opinion, sufficiently efficacious to sustain a death sentence, if indeed it will sustain the charge of rape. The appellant should therefore be permitted bail. Turner v. State, 32 Ala. App. 465, 27 So.2d 239; Earnest v. State, 21 Ala.App. 534, 109 So. 613; Parsons v. State, ante, p. 309, 33 So.2d 164.

The judgment and decree of the court below denying appellant bail is reversed, and it is hereby ordered that he be released upon his furnishing bail in a reasonable amount to be fixed by the lower court.

Reversed and remanded with instructions.

The opinion in this cause is hereby amended to the extent that it is hereby ordered that the appellant be released upon his furnishing bail in the amount of $2000.-00 to be approved by the Circuit Judge below or by the Sheriff of Elmore County, in compliance with Section 194, Title 15, Code of Alabama 1940.