
    Handy v. The State.
    
      Indictment for Rape.
    
    
      1.Restriction of § 5447 of the G'ode. — There appears 'to ' be' no legislative intent that sec. 5448 of the Code should repeal § 5447; ' they must be construed together, and thus construed the second named section is restricted in its- operation to cases where the age of the girl does not exceed ten years.
    
      2.General verdict; referred to good count. — Where there is. a good and a bad count in an indictment,, and the jury are not required to specify as to which count their finding is had, a general verdict of conviction will be referred to the good count, and a general judgment rendered thereon is not reversible error.
    3. Abstract charge, what is. — Charges asked are properly refused as abstract which are founded in part on a fact not appearing in evidence.
    4. Motion to quash venire, when bad. — A motion to quash the venire on the ground that the list of jurors served on the defendant was not signed by the sheriff is without merit.
    5. Motion to call juror, when ‘properly overruled. — A motion by the defendant in a criminal case to call a juror who is drawn in . his case from the- consideration of another case in which the juror is engaged, is properly overruled.
    Appeal from the Circuit Court of Elmore. ■
    Tried before tbe Hon. N. D. Denson.
    Virge Handy was indicted as shown in the opinion. He moved to quash the venire because a list of jurors served on him as required by the statute was not signed by the sheriff. The defendant asked two charges. The first was that if the jury believed that the girl was over ten and under fourteen years of age and consented to the act, then they may find him guilty under the second count of the indictment and must assess a fine, etc.; the second was that if the jury believed that the girl consented to the unlawful act and was over ten years of age they must acquit the defendant. The other facts appear in the opinion.
    
      No counsel for the defendant is shown by the record.
    Chas. G. Bkown, Attorney General, for the State.
   SHARPER J.

— Thev indicthient contains two counts, the first charging that the defendant “forcibly ravished Annie Bell McCall, a 'woman, in said county and State.” <The second, count charges, that he “did carnally .know op ¡abuse; in the-attempt to carnally know Annie Bell McCall, a'girl under the age of 14.years.”

- : The-second count is 'evidently drawn under the terms of section 5447 of the C'odei • That section received its -present form from the'joint committee of the General Assembly appointed to examine the present Code pits indention being to change section 3739 of the Code of 1886 so as. to make the offense described in that section apply when the age of the girl was under fourteen years instead of confining it to cases where the age was under ;ten years as. by the former statute, and-also to reduce the minimum term of imprisonment to ten years instead of dor life. ■ ' ■ '

' ' On the 15th day of February, 1897, the act was approved by'which the saíne criminál'aót corilmitted upon % girl between the age of ten'and fourteen years was úpade a misdenieapbr, punishable by fine of not less than 'fifty nor'inoré than five hundred dollars, to which could be added imprisonment in the county jail for six months. The last named, act- being passed subsequent, to the 20th day of January, 1897, was by the terms of the act adopting, the Codeleft in.full force .(see act of.February. 16, .1897) •and.Avas by the Code Comissioner inserted in’ the Code as section 54483 but .there appears no legislative indent that it should operate to repeal section 5447 in< toto. -The two sections-.standing--together in the Code are in- . .consistent in respect only of cases where the age of the ■girl who .i-s .the subject,of the. offense is.between ten and /fourteen years.. They must be -construed- together and . efféct must ,be .given to both so far as-they are consistent, =and, so construed it appears that-section 5447 is by the -.other, section named restricted, in- its operation to- cases where such age is not exceeding ten years.. . ,. .

The second count of the indictment in describing the age of the girl as under fourteen years, without averring whether it Avas OArer or under ten years, was uncertain as to which, offense-tva-s intended to be charged.1' It was not demurred to, hoAvever, and there was no motion to qugsh.- The .first count contained a separate and sufficient charge of rape.

‘••v As to the evidence The bill of exceptions contains only the following statement: “The-evidence Avithout conflict showed that the offense, :-ifi committed, Avas com-'mittecl in Elmore county'iri-'Mayj 'lSfi'Sv- -There was evidence tending'to'show tlie'guilt of "the defendant, and evidence. tending to . show his iniiocence,' under either count of .the indictment. . ipiip evidence. Avithout .conflict .showed-, that the female named in the indictment Avas eleAren years old on the 22d of September, 1898.”.. Under .such condition of the pleading and proof a conviction might Avell have been had of the crime of rape,, and the case falls-within the'general rule that where there is a good and a bad coufl-t in an indictment and AVhen the jury are not required to specify as to Avhich count their finding is had, a general verdict of conviction will be referred to the good'count, and a general, judgment rendered thereon is nót reversible error — 1. Bish. Crim. Pro., § 1015 ;Turner v. State, 40 Ala. 21 ; Montgomery v. State, Ib. 684; Shaw v. State, 18 Ala. 547; Hudson v. State, 34 Ala. 253.

It is not shoAvn by the record that there' Avas any evidence introduced on the trial tending-to show consent on the part of the girl, and for all that appears charges T and 2'asked by the defendant, Avere abstract in respect of such consent. For that reason, "if . for no other, it cannot be seen that' there Avas error in the refusal of those (harges.. .......

The motion'to quash the venire Avas without merit.

There Avas no error in overruling the.motion to have the juror Herron brought from the consideration of an- • Other unfinished .case tp be passed .upon as a juror-for the trial of this case.—Dorsey v. State, 107 Ala. 157; Cole v. State, 106 Ala. 76.

The judgment of the circuit court Avill.be affirmed. '  