Powell v. State

Conviction of rape, the penalty assessed being eight years confinement in the penitentiary.

Bill of exceptions number 1 shows that the first act of intercourse by defendant with prosecutrix was at prosecutrix's grandmother's in the daytime, about June 21, 1903. The second act of intercourse by defendant with prosecutrix was about a week after the first act. The bill shows that several other acts of intercourse between defendant and prosecutrix were proven. Defendant moved the court to require the State to elect upon which one of the many acts of intercourse proved against appellant the State would rely and depend for conviction. The court overruled the motion, and permitted State's counsel in his argument before the jury to request a verdict of guilty upon all or any of the acts of intercourse by defendant with prosecutrix. This was error. Each act of intercourse being a separate, distinct and substantive offense, the State should have been required to elect upon which act of intercourse the State would rely for conviction. This question was passed upon by this court in Batchelor v. State, 55 S.W. Rep., 491. See also Earnest Stone v. State, 7 Texas Ct. Rep., 560. For the error discussed, the judgment is reversed and the cause remanded.

Reversed and remanded.