Tolbert v. State , 28 Ala. App. 209 ( 1938 )

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.