
    Oakley v. The State.
    
      Indictment for Rape.
    
    1. Organization of special grand jury; when properly organized hy 'Walker Oounty Law and Equity Court. — Under the provisions of the act establishing the Walker County Law and Equity Court, approved December 5, 1900, (Acts of 1900-1901, p. 107), that said court “shall have and exercise all the jurisdiction and powers which are now or may hereafter be by law conferred upon the several circuit, chancery and county courts of the State,” and that “the judge of said court may, at his discretion, order a grand jury to be drawn, summoned and empannelled for said court and county of Walker, whether or not the grand jury shall have already been had for said term of said court,” in an order of said court for a special grand jury, it is not necessary that the investigation to be had should be restricted to any particular offense, or that the offense to be investigated should be particularly described, or that the name of the person or persons as being charged with the offense should be specified.
    
      2. Pleading and practice; ■when motion • to quash , or demurrers come too late. — In. the trial of, a criminal case,, after a plea to the merits has been filed, a motion to quash the indictment or a demurrer to .the indictment comes too.late.
    3. Same; when refusal of court to allow withdrawal of. the plea to the merits not revisahle. — Whether the defendant in a criminal case shall be,permitted, to withdraw his plea of not guilty and file a motion to quash the indictment or interpose a demurrer to the indictment is a matter addressed to the discretion of the trial court and is not revisable on appeal.
    4. Rape; sufficiency of indictment. — An indictment which charges that the defendant “did carnally know or abuse in the attempt to carnally know Mattie Oakley, a female under the age of fourteen years, against the peace and dignity of the State of Alabama,” is bad, and subject to demurrer, because it does not ayer whether the. person assaulted was oyer or under ten years of age, and, therefore, fails to show whether the defendant was charged with a felony, (Code, '§ 5447), ora misdemeanor, (Code, § 5448).
    5. Rape; admissibility of evidence. — On a trial under an indictment for rape, it is competent for the State, after the woman assaulted has testified to the commission of the offense, to prove in corroboration of her testimony as to the main fact, that recently after the outrage she made complaint to those to whom complaint of such an occurrence would naturally be made, but on direct examination such testimony is confined to the bare fact of complaint, and details of the occurrence, including the identity of the person accused, are not proper subjects of inquiry, and can not be proved.
    6. Same; same. — On a trial unuer an indictment for rape, it is competent for the State to prove as a part of the res gestae, that when the girl alleged to have been ravished was being assaulted she cried and called to her mother, and that the latter went to her and was struck by the defendant; but further evidence that the mother of the girl was badly hurt by the blow thus inflicted by the defendant and was thereby disabled, is irrelevant and inadmissible.
    7. Same; same. — On a trial under an indictment for rape, it is competent for the'otate to prove that the defendant lived as one of the family of which the girl assaulted was a member, and that he was considered and claimed to be a half brother of the girl he assaulted.
    8. Same; same. — On a trial under an indictment for rape, letters written by the defendant, after being placed in jail upon said charge, to the person assaulted and her mother, in which he refers to the commission of the offense charged by him, are admissible in evidence.
    
      9. Trial and its incidents; hoto motion should he shown on appeal. On a trial under an indictment for rape, a motion made by the defendant for the appointment of physicians to make physical examination of the person assaulted, in order to be reviewed on appeal, should be shown by the bill of exceptions; and if such motion appears only as a part of the record of the case, it will not be reviewed.
    Appeal from the Walker Law and Equity Court.
    Tried before the Hon. W. B. Appling.
    The appellant in this ease, Oscar Oakley, was tried under the following incUctment: “The grand jury of said county charge that before the finding of this indictment Oscar Oakley alias Oscar Berry forcibly ravished Mattie Oakley, a female.
    “The grand jury of said county further charge that before the finding of this indictment Oscar Oakley, alias Oscar Berry, did carnally know, or abuse in the attempt to carnally know Mattie Oakley, a female, under the age of fourteen years, against 'the peace and dignity of the State of Alabama.” This indictment was preferred by a special grand jury, which was summoned and drawn in obedience to am ordler made by the judge of the Walker County Law and Equity court on February 8, 1901. This order was in words and figures as follows : “It being made to appear to the court that since the last grand jury of this county has been discharged, and this court now being im session, certain indictable offenses have been committed during the session of this court by certain persons who have been arrested and are now' confined in the county jail of Walker county, Alabama, by the sheriff of said county under proper complaints made; and it being made known to the court, that one of said offenses is punishable capitally being the offense of rape and the other being the offense of arson in the 2d degree, and the court being of the opinion that the public good required that a grand jury for said county should be immediately drawn and empanelled as required by law to' investigate said offenses; it is therefore ordered by the court that the sheriff of Walker county, Alabama, forthwith summons 18 persons possessing the. requisite qualification® of grand jurors to appear at the court house of said county on Monday, tlie 11th clay of February, 1901, to- serve as grand jurors for the purpose of investigating said offenses, and the sheriff of said county is hereby commanded to forthwith execute this order. It is further ordered that this order be entered upon the minutes of this court.”
    The indictment was returned1 into- court on February 12, 1901. On that day, February 12, 1901, the defendant was arraigned under the charge preferred in said indictment and pleaded not guilty, and the cause was set. down for trial on February 19, 1901, and the court made an order directing that acspecia.1 venire consisting of 40 duly qualified jurors be regularly drawn, sunn-mom U and emp-annelled for the trial of the cause, and also ordered the sheriff to- serve a copy of the indictment, together with a list of the special jurors so drawn, and a. list of the jurors drawn and summoned for the week of the. term of the court during which the case was set for trial, one entire day before the day set for trial. On the day the case was called for trial, the defendant moved the court to quash the indictment upon several grounds, among which were the following: 1. That said persons composing the grand jury which found this indictment were hot drawn by any person. 2. Because1 the grand jury which found this indictment had no> authority to investigate the charge for which this defendant is indicted. 3. Because the persons composing said grand jury were selected by the sheriff of this county. 4. Because the grand jury that found this indictment returned indictments for more than one offense. 5. Ber cause the grand jury that found this indictment was organized to investigate more1 than one offense. The State moved the court to strike from the file the motion fo quash the .indictment beca,use it was not filed until after the defendant had plea (Ted to the merits. This motion was granted and to this ruling the defendants duly excepted. The defendant'then moved the court to allow bimi to withdraw his alleged plea of not guilty and refile his motion to quash. The court overruled this motion, and the defendant duly excepted. On the same day, the defendant moved the court to appoint a number of competent physicians to -examine the person of Mattie Oakley for the purpose1 of ascertaining whether or not there was evidence of the commission or attempted commission of a rape, upon her person. The motion was overruled, and the de.fen.dand duly excepted. This motion, however, does not appear in the bill of exceptions, hut is --hewn only by the record. Wtnm the case., was called for trial, -the defendant- offered to file, demurrers to the. indictment, which demurrers were as follows: To the indictment as a whole the defendant demurred upon the following’ grounds: 1. The first count, of tin.-, indictment. charges a felony and the second count charges a misdemeanor. 2. For that the first count charge's, an offense punishable by death or imprisonment, in the penitentiary and the: second count charges an offense that is punishable neither h.v death nor imprisonment in the penitentiary. To the first count of the indictment, the defendant demurred upon the ground that said count does not allege the time of the commission of the alleged offense with sufficient, certainty to give the defendant notice' of what offense he is charged. To the second count the defendant demurred upon the following grounds: 1. The: said count fails to allege whether or not the said Mattie Oakley was under or over the age of ten years at the time of the. alleged commission of the said offense. 2. Because', the said count falls to allege that the sa;id Mattic Oakley was over the age of ten years at the time of the commission of the alleged offense. 3. Because the said count fails to allege that the said Mattie Oakley is under the age .of ten years. The Staff- moved the. court to strike from the file the defendant’s demurrers, upon the grouud that it was filed after the plea, to the merits- was interposed by the defendant. This motion was sustained, and the defendant duly excepted. The defendant moved the court to be allowed to withdraw his alleged i>lea. of not- guilty, and to interpose his demurrers. This motion was overruled, and the defendant duly excepted.
    On the trial of the* case, the State introduced Mattie Oakley, the person alleged to have been assaulted, who testified to the commission of rape upon her by the defendant. She further testified that she was 12 years of age. There, wais introduced by the State testimony corroborating the. testimony of Mattie Oakley.
    
      One Sam Fowler was introduced as a witness for the defendant, and during bis examination be testified that fine defendant lived in the bouse with Mrs. Oakley as one of- the family, and lie was generally regarded in the community as the half brother of Mattie Oakley. This witness also testified to his having delivered letters from the defendant to Mattie Oakley and her mother, Belle Oakley. It was shown by the evidence for the State that these letters were written by the defendant after he was put in jail under the charge for which he was being tried. In the letter to Mattie Oakley, among other things, he said that if he had mistreated her, he hoped she would forgive him and that he would never do so any more. In the letter to Mrs. Oakley he stated that if he ever got out of this trouble, he would never- do so again. Upon the State offering to introduce tírese letters in evidence, the defendant objected upon the ground that they were irrelevant, illegal and immaterial, and contained a confession, and that there had been no predicate laid for the confession. The court overruled this motion, allowed the let ters to be introduced in evidence, and to this ruling the defendant duly excepted.
    The jury returned a verdict finding the defendant guilty as charged in the first count, of the indictment, and fixing his punishment at fifteen years in the penitentiary. The judgment and sentence of the court were in accordance with such verdict.
    Lioxth & Siierer, for appellant.
    Chas. G. Brown, Attorney-General, for the State.
   SHARPE, J.

An act approved December 5th, 1900, created the “Walker County Law and Equity Court” and declared it “shall have and exercise all the jurisdiction and powers which are now or may hereafter he by law conferred upon the several circuit, chancery and county courts of the State.” It provided that “when exercising the jurisdiction and powers -of courts at law said court shall conform to the rules of procedure and practice in the circuit courts of this State,” and further “that in the' absence of any special jury law for the county of Walker, that the grand and petit juries for said court shall be drawn and empannelled and sworn in the same manner as is or may be hereafter provided by law in respect to grand and petit juries in the circuit courts of this látate.” There is another provision “that the judge of said court may, at his discretion, odder a grand jury to be drawn, summoned and empannelled for said court and county of Walker, whether or not a grand jury shall have already been had for said term of said court.” This latter provision seems a departure from the general system, for, under the latter but one grand jury with general powers could be drawn and organized at a. single term of court.—O’Brien v. State, 91 Ala. 16; O'Byrnes v. State, 51 Ala. 25. However, it is not inconsistent with the exercise by the Walker County Law and Equity Court of the poAver Avhich under the general system (Code”, § 5000) is given the courts to organize a grand jury for the. special purpose of acting on any offense whether one or more “committed during the session of tin comb, and after the grand jury had been discharged,” Avithout a drawing from the juay box of names of persons to compose such jury and from persons summoned by the sheriff under an order of court. The poAver to proceed under that section of the Code Avas among those conferred on the court by the clause first aboA’e quoted from the act creating it. A like conclusion invoking the power of the city court of Montgomery was reached in Lide v. State, decided at last term, 133 Ala. 43. In such case the statute does not require that the court in its order for a grand jury shall particularly 'describe or restrict the grand jury in describing the offense to be nwestigated or shall specify the name of a person as being charged AAdth its commission. Por the court to do so in advance of the investigation might be impracticable and might tend to defeat the object of the investigation. It is, therefore, immaterial that the order for the grand jury Avhich indicted the defendant does not name him or the offense Avith Avhich he is charged hv the second count of the indictment.

These questions relating to the legality of the grand jury Ave have thought proper to he passed on here though the motion to quash the indictment Avas not made until after the defendant had pleaded not guilty and for that reason was stricken out. By first pleading to the merits of the case the defendant, waived his right both to move to quash and to demur to the indictment. 1 Bish. New Crim. Pro., § 730. As supporting this proposition so far as it relates to the. motion, see Davis v. State, 131 Ala. 10; Jackson v. State, 74 Ala. 26; Nixon v. State, 68 Ala. 535. Whether to allow the plea, withdrawn, or to strike out the motion to quash and the demurrer as was done was within the trial court’s discretion.

Since the. judgment must be reversed for rulings to be, referred to, and that such action may be taken on another trial as may be advised, we call attention to the case of Handy v. State, 121 Ala. 13, as indicating that the second count of the indictment, is, bad because it does not a.ver whether Mattie Oakley was, over or under ten years of age, and, therefore, fails to show whether the defendant is. charged under section 5447 of the Code as for a felony, or under section 5448 of the 'Code as for a misdemeanor.

On the direct examination of Mrs. Oakley, a witness for the prosecution and the mother of Mattie Oakley, who was the alleged victim of the: assault, the solicitor propounded to heir this question : “1 will ask whether Mattie told you what Oscar had done to her?” Before it was answered the question was changed to the following: “I will ask you without going into details, did she tell you he had raped her?” and against defendant’s objection the witness was alloAved to ánswer, “Yes, sir.” The objection to this question and the objection to the like inquiry addressed to the. witness, Mamie Oakley should have been sustained. The State had a, right to prove that recently after the assault the girl made complaint of the occurrence to her mother and sister, but in alio,wing the State by its questions and the witnesses by their answer's to individualize the defendant, as the person said by the girl to have committed the outrage, the testimony elicited went beyond the permissible scope of showing a. liare complaint, and injected into the case unsworn statements.' of the girl directed to the identification -of the defendant, as the culprit. A similar question amis passed on in Bray v. State, 131 Ala. 46, Avhere it was stated as a rule applicable in such cases and sustained by the authorities there cited that “the State is not privileged to prove that the Avoman complained that any particular person assaulted her until after the defendant. has brought, out particulars of the complaint, or has introduced evidence tending to impeach the Avitness avIio testifies, to the complaint.”

It Avas proper for the. State to prove as of the roa gcfitae, that when the. girl Mattie. Avas being assaulted she cried and called to Mrs. Oakley, and that the latter Avent. to her and was struck by defendant.; but that Mrs. Oakley was; by that striking put in “bad condition” and disabled to do cooking Avas matter irrelevant to the issue. The objections to the. questions that brought, out these facts, viz.: “What effect did the lick have on you?” and “What disabled you?” ought to have been sustained.

Fowler was properly allowed to testify-that defendant lived as one of the Oakley family. The questions asked by the solicitor as to whether defendant did- not “hold out and claim Mattie and Mamie Oakley to he Ids half sisters, and avIiether defendant; Avas considered as one of the Oakley family” may not luwe; been in proper form; but. they Avere not irreleAumt or immaterial and Avert-, therefore, not subject to the. grounds of objection urged against them.

There was no error in overruling defendant’s objection to the introduction of letters offered by the. State, or in not allowing him to testify as to AA'liether there had been improper intercourse between him and Mrs. Oakley, or AA'liether the latter had been drunk.

That AA'liieli appears in the transcript as a motion by defendant for the appointment of physicians to make physical examination of Mattie Oakley, being out of the bill of exceptions, is not properly authenticated for the purpose of review.

Neversed and remanded.  