Swain v. State

BOWEN, Presiding Judge.

Willie A. Swain was convicted for the first degree rape of his 11-year-old daughter and was sentenced to 21 years’ imprisonment. That conviction must be reversed because the State failed to prove the element of penetration.

“Sexual intercourse” is an essential element of rape in the first degree. See Ala.Code 1975, § 13A-6-61(a). “Such term has its ordinary meaning and occurs upon any penetration, however slight; emission is not required.” Ala.Code 1975, § 13A-6-60(1). “The crime of rape requires proof of an actual penetration of the female sex organ by the male sex…