Oakley v. State

135 Ala. 15 | Ala. | 1902

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.