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GUNTER, Justice.
Rape. Montgomery Superior Court. Before Judge O'Connor.
This appeal is from a conviction for rape and a ten-year sentence. Error is enumerated: (1) on the general grounds; (2) on denial of defendant's motion for a directed verdict of acquittal; (3) "failure of the state to offer provable evidence of the alleged rape of Linda Williams coupled with its deferment of motion for nolle prosequi until immediately prior to resting of its case was error and deprived defendant of a fair trial."
We have reviewed the record, and we conclude that the evidence is sufficient to sustain the conviction. Therefore, the first two enumerated errors are without merit.
The appellant was tried under two indictments for rape against two separate victims. The cases were tried together by agreement of appellant's counsel and the state's counsel. During the course of the trial it developed that the alleged rape contained in indictment number 228, the companion case, had occurred prior to the time alleged in the indictment. The trial judge ruled out evidence with respect to that alleged crime. The state then with the consent of the court and the appellant's counsel entered a nolle prosequi to indictment number 228.
The trial judge opened his charge to the jury as follows: "As I have already indicated to the members of the jury there remains for your consideration in this case the issue formed only by one bill of indictment identified as case number 229, State v. Matt Williams, charged with the offense of rape. You will not consider the other case which was mentioned at the beginning of the trial for any purpose, nor shall you let the existence of that case influence your mind to any degree whatsoever."
We think that the circumstances outlined show that the appellant's third enumerated error is without merit.
Albert D. Mullis, District Attorney, Arthur K. Bolton, Attorney General, G. Stephen Parker, Assistant Attorney General, for appellee.
J. Clayton Burke, Jr., for appellant.
Friday May 22 11:19 EDT

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