election doctrine in Alabama

2008This Court stated that the State had presented only “generic evidence” against Shouldis; therefore, “the limited abrogation of the election rule as set out in R.L.G.[ v. State, 712 So.2d 348 , 355 (Ala.Crim.App.1997), aff'd, 718 So.2d 117 (Ala. 1998),] and R.A.S. [v. State, 718 So.2d 108 (Ala.Crim.App.1997), aff'd, 718 So.2d 117 (Ala.1998),] was applicable.” Shouldis v. State, 953 So.2d at 1282 .

2004In R.A.S. v. State , 718 So.2d 108 (Ala.Crim.App. 1997), aff'd, 718 So.2d 117 (Ala. 1998), this Court addressed the general rule concerning the doctrine of election: "`"The doctrine of election operates to protect a defendant from being prosecuted for more than one offense in the same count of an indictment.

1997However, I do not believe the ratio decidendi of the election rule set out in Deason v. State, 363 So.2d 1001 (Ala.1978), and Watkins v. State, 36 Ala.App. 711 , 63 So.2d 293 (1953), "would hypothetically be consented to today by the conscience and the feeling of justice of the majority of all those whose obedience is required by the rule of law on which the ratio decidendi of [those] prior decision[s] was logically based," Laun, Stare Decisis, 25 Va.L.Rev. 12, 22 (1938), in child molestation cases in which a child is under the domination of a parent or a person standing in loco parentis for a

1997Under facts similar to those in this case, the Alabama Supreme Court in Ex parte King, 707 So.2d 657 (Ala.1997) (five Justices concurring, one Justice concurring in part and dissenting in part, and three Justices dissenting), declined to overrule or to make an exception to the long-standing doctrine of election, as enunciated in Deason v. State, 363 So.2d 1001 (Ala.1978), and Watkins v. State, 36 Ala.App. 711 , 63 So.2d 293 (1953).

1997Under facts similar to those in this case, the Alabama Supreme Court in Ex parte King, 707 So.2d 657 (Ala.1997) (five Justices concurring, one Justice concurring in part and dissenting in part, and three Justices dissenting), declined to overrule or to make an exception to the long-standing doctrine of election, as enunciated in Deason v. State, 363 So.2d 1001 (Ala.1978), and Watkins v. State, 36 Ala.App. 711 , 63 So.2d 293 (1953).

1997Under facts similar to those in this case, the Alabama Supreme Court in Ex parte King, 707 So.2d 657 (Ala.1997) (five Justices concurring, one Justice concurring in part and dissenting in part, and three Justices dissenting), declined to overrule or to make an exception to the long-standing doctrine of election, as enunciated in Deason v. State, 363 So.2d 1001 (Ala.1978), and Watkins v. State, 36 Ala.App. 711 , 63 So.2d 293 (1953).

2008This Court stated that the State had presented only “generic evidence” against Shouldis; therefore, “the limited abrogation of the election rule as set out in R.L.G.[ v. State, 712 So.2d 348 , 355 (Ala.Crim.App.1997), aff'd, 718 So.2d 117 (Ala. 1998),] and R.A.S. [v. State, 718 So.2d 108 (Ala.Crim.App.1997), aff'd, 718 So.2d 117 (Ala.1998),] was applicable.” Shouldis v. State, 953 So.2d at 1282 .

2008This Court stated that the State had presented only “generic evidence” against Shouldis; therefore, “the limited abrogation of the election rule as set out in R.L.G.[ v. State, 712 So.2d 348 , 355 (Ala.Crim.App.1997), aff'd, 718 So.2d 117 (Ala. 1998),] and R.A.S. [v. State, 718 So.2d 108 (Ala.Crim.App.1997), aff'd, 718 So.2d 117 (Ala.1998),] was applicable.” Shouldis v. State, 953 So.2d at 1282 .

1997As Justice Maddox noted, one court has addressed the issue by carving out an exception to the election rule in “multiple act” child sexual abuse cases. “[T]he Court of Criminal Appeals of Oklahoma has carved out this exception to the election rule: ‘[W]hen a child of tender years is under the exclusive domination of one parent for a definite period of time and submits to sexual acts at that parent’s demand, the separate acts of abuse become one transaction,’ * and ‘[s]ome situations which fall within the exception are when a continuous application of force is used and no reasonable doubt exist

1997As Justice Maddox noted, one court has addressed the issue by carving out an exception to the election rule in “multiple act” child sexual abuse cases. “[T]he Court of Criminal Appeals of Oklahoma has carved out this exception to the election rule: ‘[W]hen a child of tender years is under the exclusive domination of one parent for a definite period of time and submits to sexual acts at that parent’s demand, the separate acts of abuse become one transaction,’ * and ‘[s]ome situations which fall within the exception are when a continuous application of force is used and no reasonable doubt exist

1916When there is but one count charging a single offense, the law presumes that the defendant comes to trial prepared to meet the single charge, and the prosecution will not be permitted, after once having elected, to introduce evidence of another and different offense; but where the indictment charges that the offense was committed by different means or with different intents, in the alternative, or where the offenses are of that charter which may be joined in the same indictment, in different counts, the defendant is fully informed of the cause of the prosecution, and the doctrine of election d

1916In the Carlton Case, 100 Ala. 130 , 14 South. 472 , cited in the opinion of Judge Brown, there were two counts in the indictment, and Judge Coleman, speaking for the court, said: “The very purpose for framing the indictment with two or more counts was to prevent the application of the doctrine of election.” Again, in the Untreinor Case, 146 Ala. 133 , 41 South. 170 , also cited by Judge Brown, there were two counts, and the court said: “When the indictment contains only one count, care should be observed that the probative force of such testimony be not extended beyond the limits indicated; th

1997Moreover, in specific regard to a prosecution resting on generic testimony, “recent expansion of criminal defendants’ due process rights and procedural protections casts doubt on the continued validity of [cases following a strict election rule], at least as applied to generic testimony by molested children.” Jones, 51 Cal.3d at 311 , 270 Cal. Rptr. at 620 , 792 P.2d at 652 .

1997Moreover, in specific regard to a prosecution resting on generic testimony, “recent expansion of criminal defendants’ due process rights and procedural protections casts doubt on the continued validity of [cases following a strict election rule], at least as applied to generic testimony by molested children.” Jones, 51 Cal.3d at 311 , 270 Cal. Rptr. at 620 , 792 P.2d at 652 .

1997As Justice Maddox noted, one court has addressed the issue by carving out an exception to the election rule in "multiple act" child sexual abuse cases. "[T]he Court of Criminal Appeals of Oklahoma has carved out this exception to the election rule: `[W]hen a child of tender years is under the exclusive domination of one parent for a definite period of time and submits to sexual acts at that parent's demand, the separate acts of abuse become one transaction,' * and `[s]ome situations which fall within the exception are when a continuous application of force is used and no reasonable doubt exist

1997Additionally, the Court of Criminal Appeals of Oklahoma has carved out this exception to the election rule: "[W]hen a child of tender years is under the exclusive domination of one parent for a definite period of time and submits to sexual acts at that parent's demand, the separate acts of abuse become one transaction," [3] and "[s]ome situations which fall within the exception are when a continuous application of force is used and no reasonable doubt exists as to the occurrence of each act." Scott v. State, 668 P.2d 339 (Okla.Crim.App.1983), citing McManus v. State, 50 Okl.Cr. 354 , 297 P. 83

1997Under facts similar to those in this case, the Alabama Supreme Court in Ex parte King, 707 So.2d 657 (Ala.1997) (five Justices concurring, one Justice concurring in part and dissenting in part, and three Justices dissenting), declined to overrule or to make an exception to the long-standing doctrine of election, as enunciated in Deason v. State, 363 So.2d 1001 (Ala.1978), and Watkins v. State, 36 Ala.App. 711 , 63 So.2d 293 (1953).

1997Under facts similar to those in this case, the Alabama Supreme Court in Ex parte King, 707 So.2d 657 (Ala.1997) (five Justices concurring, one Justice concurring in part and dissenting in part, and three Justices dissenting), declined to overrule or to make an exception to the long-standing doctrine of election, as enunciated in Deason v. State, 363 So.2d 1001 (Ala.1978), and Watkins v. State, 36 Ala.App. 711 , 63 So.2d 293 (1953).

1923In Brooms v. State, 197 Ala. 419 , 73 South. 35 , our court holds: “The provision of section 7151, Code, 1907, does not affect the doctrine of election, the doctrine remaining the same whether several offenses be charged in one count, or in different counts, provided the indictment as a whole only attempts to charge one act which may constitute one or more of several offenses, and an indictment thereunder charges one wrongful act as one or the other of two or more offenses, and not the commission of all the offenses named in the alternative.” In Sampson’s Case, 107 Ala. 76 , 18 South. 207 , th

1923In Brooms v. State, 197 Ala. 419 , 73 South. 35 , our court holds: “The provision of section 7151, Code, 1907, does not affect the doctrine of election, the doctrine remaining the same whether several offenses be charged in one count, or in different counts, provided the indictment as a whole only attempts to charge one act which may constitute one or more of several offenses, and an indictment thereunder charges one wrongful act as one or the other of two or more offenses, and not the commission of all the offenses named in the alternative.” In Sampson’s Case, 107 Ala. 76 , 18 South. 207 , th

1916In the Carlton Case, 100 Ala. 130 , 14 South. 472 , cited in the opinion of Judge Brown, there were two counts in the indictment, and Judge Coleman, speaking for the court, said: “The very purpose for framing the indictment with two or more counts was to prevent the application of the doctrine of election.” Again, in the Untreinor Case, 146 Ala. 133 , 41 South. 170 , also cited by Judge Brown, there were two counts, and the court said: “When the indictment contains only one count, care should be observed that the probative force of such testimony be not extended beyond the limits indicated; th

1916In the Carlton Case, 100 Ala. 130 , 14 South. 472 , cited in the opinion of Judge Brown, there were two counts in the indictment, and Judge Coleman, speaking for the court, said: “The very purpose for framing the indictment with two or more counts was to prevent the application of the doctrine of election.” Again, in the Untreinor Case, 146 Ala. 133 , 41 South. 170 , also cited by Judge Brown, there were two counts, and the court said: “When the indictment contains only one count, care should be observed that the probative force of such testimony be not extended beyond the limits indicated; th

1916When there is but one count charging a single offense, the law presumes the defendant comes to trial prepared to meet the single charge, and the prosecution will not be. permitted, after once having elected, to introduce evidence of another and different offense; but where the indictment charges that the offense was committed by different means, or with different intents, in the alternative, or where the offenses are of that character which may be joined in the same indictment, in different counts, the defendant is fully informed of the cause of the prosecution, and the doctrine of election do

1890As there was but one count, the State was bound by the doctrine of election, under this indictment, where a single act is a violation of the law, and would have been held to the first offense testified to by the State’s witness. —Elam v. State, 26 Ala. 48 .

2008This Court stated that the State had presented only “generic evidence” against Shouldis; therefore, “the limited abrogation of the election rule as set out in R.L.G.[ v. State, 712 So.2d 348 , 355 (Ala.Crim.App.1997), aff'd, 718 So.2d 117 (Ala. 1998),] and R.A.S. [v. State, 718 So.2d 108 (Ala.Crim.App.1997), aff'd, 718 So.2d 117 (Ala.1998),] was applicable.” Shouldis v. State, 953 So.2d at 1282 .

2004Where the evidence discloses two or more offenses growing out of distinct and separate transactions, a court should grant a timely motion to require the State to elect." "` Watkins v. State , 36 Ala.App. 711 , 63 So.2d 293 , 293-94 (1953). "`"The need for election arises where there is but one count charging a single offense, but the proof shows more than one instance of that offense. *Page 473 The cases of Deason v. State , 363 So.2d 1001 (Ala. 1978), and Reed v. State , 512 So.2d 804 (Ala.Cr.App. 1987), stand for the proposition that when the State has charged the accused with one offense in

2004Where the evidence discloses two or more offenses growing out of distinct and separate transactions, a court should grant a timely motion to require the State to elect." "` Watkins v. State , 36 Ala.App. 711 , 63 So.2d 293 , 293-94 (1953). "`"The need for election arises where there is but one count charging a single offense, but the proof shows more than one instance of that offense. *Page 473 The cases of Deason v. State , 363 So.2d 1001 (Ala. 1978), and Reed v. State , 512 So.2d 804 (Ala.Cr.App. 1987), stand for the proposition that when the State has charged the accused with one offense in

2004The appellant's theft of funds from Goodwill Industries was systematic and constituted a continuous series of actions." 565 So.2d at 1282 .

2004Where the evidence discloses two or more offenses growing out of distinct and separate transactions, a court should grant a timely motion to require the State to elect." "` Watkins v. State , 36 Ala.App. 711 , 63 So.2d 293 , 293-94 (1953). "`"The need for election arises where there is but one count charging a single offense, but the proof shows more than one instance of that offense. *Page 473 The cases of Deason v. State , 363 So.2d 1001 (Ala. 1978), and Reed v. State , 512 So.2d 804 (Ala.Cr.App. 1987), stand for the proposition that when the State has charged the accused with one offense in

1997See also Jones v. State, 781 P.2d 326 (Okla.Crim.App.1989); and Drake v. State, 761 P.2d 879 (Okla.Crim.App.1988)." 707 So.2d at 661.

1997The problem associated with the question presented has been best described by the Washington Court of Appeals in State v. Brown, 55 Wash.App. 738, 746-47 , 780 P.2d 880, 885 (1989), review denied, State v. Brown, 114 Wash.2d 1014 , 791 P.2d 897 (1990): "In more recent times, our courts have had occasion to reconsider whether the election rule strikes a proper balance between the defendant's rights and the problems presented in the prosecution of cases involving sexual molestation of children.

1991"Counsel for Davis has also cited the decision of the Supreme Court of Alabama in Megginson v. Turner, 565 So.2d 247 (Ala.1990).

1991"Counsel for Davis has also cited the decision of the Supreme Court of Alabama in Megginson v. Turner , 565 So.2d 247 (Ala. 1990).

1989Horton , cited as authority by Thornton , involved the "doctrine of election." In that case, the court held, "[t]he state having elected to prosecute the defendant for having possession of prohibited liquors at the time 'whiskey was found in the woodhouse,' [as opposed to the whiskey found in the defendant's room at the same time] would only be entitled to a conviction upon evidence establishing that fact." Horton , 17 Ala. App. at 190 , 86 So. at 241 .

1989Horton , cited as authority by Thornton , involved the "doctrine of election." In that case, the court held, "[t]he state having elected to prosecute the defendant for having possession of prohibited liquors at the time 'whiskey was found in the woodhouse,' [as opposed to the whiskey found in the defendant's room at the same time] would only be entitled to a conviction upon evidence establishing that fact." Horton , 17 Ala. App. at 190 , 86 So. at 241 .

1988It must be modified, so as to be limited to those cases only where the doctrine of election applies, or where the various counts of the indictment are intended to describe offenses which are separate and district." Jackson v. State , 74 Ala. 26 , 31 (1883).

1981"If proof was made that $25 or more was embezzled, the crime is punishable as grand larceny is punished. . . ." 134 Ala. at 450 , 454 , 33 So.2d 226 .

1981"If proof was made that $25 or more was embezzled, the crime is punishable as grand larceny is punished. . . ." 134 Ala. at 450 , 454 , 33 So.2d 226 .

1954Barefield v. State, 14 Ala.App. 638 , 72 So. 293 ; Skinner v. State, 36 Ala.App. 434 , 60 So.2d 363 ; Breeding v. Commonwealth, 191 Ky. 128 , 229 S.W. 372 ; State v. Hamilton, 263 Mo. 294 , 172 S.W. 593 .

1954Barefield v. State, 14 Ala.App. 638 , 72 So. 293 ; Skinner v. State, 36 Ala.App. 434 , 60 So.2d 363 ; Breeding v. Commonwealth, 191 Ky. 128 , 229 S.W. 372 ; State v. Hamilton, 263 Mo. 294 , 172 S.W. 593 .