72 Ala. 191 | Ala. | 1882
Each count of the indictment is in the form prescribed by the Code; the first charging the offense of r.ape, and the second that of carnal knowledge of a female child „ under ten years of age, or, in the alternative, the abuse of such child in the attempt to have carnal knowledge of her. Code, §§ 4304, 4306; Forms 1 and 8, p. 992. The offenses are of the same character, and subject to the same punishment; and they may be joined, in different counts, in the same indictment. The motion to quash, and the demurrer to the indictment, were properly overruled. Nor was there any ground for compelling the State to elect the prosecution of the one offense, to the exclusion of the other.—Dawkins v. The State. 58 Ala. 376.
2. The juror "Wedgeworth was not subject to challenge for cause. It is not the mere formation of an opinion touching the guilt or innocence of the accused, which disqualifies a juror. The statute disqualifies him only when he has a fixed opinion, which would bias his verdict. An opinion, no matter how formed, or upon what it may be based, that is not fixed, that may be changed by the evidence, that will not bias the verdict, will not disqualify.—Carson v. State, 50 Ala. 134; Bales v. State, 63 Ala. 30.
3. The child injured, at the time of the injury, was above the age of eleven years; and being offered as a witness, the defendant objected to her competency. To ascertain her capacity, she was examined by the court, and by counsel, in the presence, and under the direction of the court. While it can not be said that’ she manifested a want of understanding common to children of her years, yet she manifested an entire want of instruction as to the nature and effect of an oath, of all re
Let the judgment be reversed, and the cause remanded ; the prisoner will remain in custody, until discharged by due course of law.
