Hall v. State

Per Curiam. At the September term, 1929, of the superior court of Gwinnett county, the defendant was indicted for assault with intent to rape on a nine-year-old child.' When the case came on for trial at the December term of the court, the defendant filed a plea of autrefois acquit, alleging that he was indicted at the September, 1929, term of the-superior court of DeKalb county for the same crime, and was there tried and acquitted. It is conceded by counsel for the State that the two indictments allege the same facts, except as to the county in which the crime was committed. It was agreed between counsel that the brief of evidence in the trial in DeKalb county was correct, and would be relied on in the trial of the case in Gwinett county, but that the State reserved the right to introduce any additional evidence obtainable. It is undisputed that the defendant brought the child from Lawrenceville to Atlanta in an automobile, passing through' Gwinnett, DeKalb, and Fulton counties, and that the two were alone in the car. The substance of the child’s testimony is that shortly after leaving Lawrenceville the defendant put his hand on and finger in her private parts, and kept them there practically all the time until they arrived in Atlanta. “He did not keep his hand on my privates all the time, but if he took it off he would put it right straight back. . . When cars would pass he would keep his hand in there. When he took his hand off he would put it right back. He begged me to let him put his’n against mine. He had his finger in there nearly all the time. . . He hurt me with his fingers. . . When I started crying he took his finger out of there, and then put it back in.” A practicing physician testified that lie examined the child about two days after the crime was alleged to have been committed, and “found the hymen practically destroyed; the right rim, the rudiments of the hymen were left, just the residue, I might say, of the hymen was left, and that was red and inflamed. The vaginal canal was [457] slightly inflamed.” The trial judge overruled the plea of autrefois acquit; and upon this ruling the plaintiff in error assigns error. The evidence shows that the defendant assaulted the girl in both Gwinnett and DeKalb counties upon an automobile ride. It is true that the assaults occurred on the same day and on the same ride, and that they were practically continuous; but one occurred in Gwinnett county and the other in DeKalb county. Or, if it be admitted that it was the same assault, begun in Gwinnett and continued in DeKalb, it was not begun in one county and completed in the other, as contended by plaintiff in error, but the defendant’s act made a complete crime of assault in both counties. The fact that a jury in DeKalb county found him not guilty of committing the crime in that county is no good or valid reason why a jury in Gwinnett county should not be allowed to determine whether he committed the crime in that county. This case is different from any case cited, as admitted by counsel for plaintiff in error in their brief. The judge properly overruled the plea in bar. Judgment affirmed. Broyles, O. J., and Bloodworlh, J., concur.