Feb. 14,

1907, p. 37 (105),

$3.

lb, $4.

Illegal Freights, Rates or Charges.

families, nor to officers or agents, surgeons, physicians, and attorneys at law of such carriers and the immediate families of such persons, to ministers of religion, traveling secretaries of the Young Men's Christian Association and the Young Women's Christian Association, inmates of hospitals and charitable and eleemosynary institutions and persons exclusively engaged in charitable and eleemosynary work; to indigent, destitute, and homeless persons, and to such persons when transported by charitable societies and hospitals and the necessary agents employed in such transportation; to inmates of the National Home or State Home for disabled volunteer soldiers, and of soldiers' and sailors' homes, including those about to enter, and those returning home after discharge, and boards of managers of such homes, to necessary care-takers of live stock, poultry, and fruit, to employes on sleeping cars and express cars and to linemen of telegraph and telephone companies, to railway mail service employes, postoffice inspectors, custom inspectors, and immigration inspectors, to newsboys on trains, baggage agents, witnesses attending any legal investigation in which the carrier is interested, persons injured in wrecks where being transported from the place of injury to their homes and places for treatment, and physicians and nurses attending such persons, and members of the railroad commission of Alabama, and employes of such commission when traveling on official business only, but this provision shall not be construed to prohibit the interchange of passes for the officers, agents, and employes of carriers and their immediate families. nor prohibit any carrier from carrying passengers free with the object of providing relief in cases of general epidemic, pestilence, or other calamitous visitation.

7693. Witnesses required to answer questions before grand jury.-Witnesses before the grand jury, summoned to give evidence of any violation of this article, may be required to answer generally as to any such offense within their knowledge committed within twelve months next preceding, without being specially interrogated as to any particular offense, but no witness shall be prosecuted for any offense as to which he testifies before the grand jury and any member of the grand jury or solicitor may be a witness to prove this fact.

7694. Witness failing to attend or testify guilty of contempt and misdemeanor; penalty for.-Any person who is summoned to go before the grand jury to answer as to any violation of the law prohibiting free passes within his knowledge, and who fails and refuses to attend and testify in obedience to such summons, without a good excuse, to be determined by the court, is guilty of a contempt of court and also a misdemeanor.

and, on conviction for such misdemeanor, shall be fined not less than one hundred dollars nor more than two thousand dollars, and may be imprisoned in the county jail or sentenced to hard labor for the county for not more than six months, at the discretion of the jury trying the case.

36, § 2.

7695. Charging or accepting higher rate of fare than pro- Feb. 14. vided by law; penalty.-Any corporation, partnership, asso- 1907, p. ciation, or person owning or operating a railroad, or officer, servant, or agent of any such, who shall knowingly charge or accept fare at a higher rate than prescribed or authorized by sections 5563 and 5564 of this Code, or fixed by the railroad commission of Alabama, shall be guilty of a misdemeanor, and shall, on conviction, be fined not less than fifty dollars for each offense.

.4810-4813

2361

RAILROAD TRACKS IN TOWNS AND CITIES (Political Code)..1296–1301

ten and under fourteen
years of age.

7701. Carnal knowledge of married
woman by falsely personat-
ing husband.

7702. Attempt to have carnal
knowledge of married
woman by such deception.

7696. (5444) (3736) (4304) (3661) (199) Punishment of rape. Any person who is guilty of the crime of rape must, on conviction, be punished, at the discretion of the jury, by death or imprisonment in the penitentiary for not less than ten years. (Form 88 [70].)

(Aikin's Digest, p. 102, § 7; Although the offenses denounced

Clay's Digest, pp. 414,
in § § 7696 (5444) and

415, § 14.) 7699 (5447)

are punishable in the same manner, they are not identical, and accordingly a different form of indictment is prescribed for each.-Vasser v. State, 55 Ala. 264. The crime is one calculated to produce the greatest public indignation and trials should not be had under circumstances where, on account of public indignation, the defendant could not have a fair and impartial trial.-Thompson v. State, 117 Ala. 67 (23 So. 676); s. C., 122 Ala. 12 (26 So. 141). Argument of counsel which characterizes the defendant on trial of rape or assault with intent to rape as a "fiend and a demon. having a foul heart," and appeals to the jury to convict him "in order to protect innocent little white girls from such black fiends and demons as defendant," held not to be unwarranted.-Brown v. State, 121 Ala. 9 (25 So. 744). Rape can be committed on a female under 14 and over 10 years of age. Oakley v. State, 135 Ala. 29 (33 So. 693). Under indictment for rape. a conviction may be had for an assault with intent to commit, or even for an assault and battery.-Oakley v. State, 135 Ala. 29 (33 So. 693). It is error to ask prosecutrix, "did you tell what he had done to you to anybody?”— Oakley v. State, 135 Ala. 29 (33 So. 693). Rape may be joined in indictment with "carnal knowledge of female child under ten years of age."-Grimes's case, 105 Ala. 86 (17 So. 184); Beason's case, 72 Ala. 191. Forms in Code sufficient.-Ib.; Leoni's case, 44 Ala. 119. Force, actual or constructive, essential.—Murphy's case, 6 Ala. 765; Lewis's case, 30 Ala. 54; McNair's case, 53 Ala. 453; McQuirk's case, 84 Ala. 435 (4 So. 775). Force necessary to constitute the crime; need not be actual, but may be constructive or implied; acquiescence to the act through duress or fear is constructive force.-Shepherd v. State, 135 Ala. 9 (33 So. 266). If the female is not an imbecile, or is not rendered unconscious by bodily weakness, by drugs or otherwise, or is not deceived by false personation, or is not under ten years of age, force is an essential element.-Jones v. State, 90 Ala. 628 (8 So. 383). Constructive force may be by the use of drugs, intoxicants, or where the woman is idiotic.— Lewis's case, 30 Ala. 54. Amount of force or duress necessary may depend upon age, state of health, temper, disposition, and other circumstances.Smith's case, 47 Ala. 540; Waller's case, 40 Ala. 325. Offense complete when the woman is made to yield through fear, or the use of drugs, and does not consent voluntarily and consciously.-Hooper's case, 106 Ala. 41 (17 So. 679); McQuirk's case, 84 Ala. 435 (4 So. 775); Waller's case, 40 Ala. 325. If the conduct of prosecutrix toward accused at the time be such as to create in his mind an honest and reasonable belief that she had consented or was willing to the act, it is not rape.-McQuirk's case, 84 Ala. 435 (4 So. 775); Allen's case, 87 Ala. 107 (6 So. 370). Acquiescence obtained by duress, or fear of personal violence will avail the defendant nothing.-McQuirk's case, 84 Ala. 435 (4 So. 775). Idiocy or mania, not mere weak-mindedness, renders woman incapable of consenting. McQuirk's case, 84 Ala. 435 (4 So. 775). Prosecutrix may testify as to whether or not she consented.-Jones's case, 104 Ala. 30 (16 So. 135). Common strumpet, or concubine of ravisher, under protection of the law and cannot be forced.-Boddie's case, 52 Ala. 395. The woman is a competent witness; and her testimony alone, if believed, is sufficient, although she be of ill fame for chastity.-Boddie's case, 52 Ala. 395; Leoni's case, 44 Ala. 110; Barnett's case, 83 Ala. 40 (3 So. 612). Charge when prosecutrix the only witness, when misleading.-Ib. Evidence of complaint made by prosecutrix within reasonable time, but not particulars, admissible.—Leoni's case, 44 Ala. 110; Lacy's case, 45 Ala. 80; Smith's case, 47 Ala. 540; Griffin's case, 76 Ala. 29; Barnett's case, S3 Ala. 40 (3 So. 612); Allen's case, 87 Ala. 107 (6 So. 370); Barnes's case, 88 Ala. 204 (7 So. 38); Hooper's case, 106 Ala. 41 (17 So. 679). Evidence that husband of prosecutrix forced her to submit in order to get evidence for a divorce.-Langford v. State, 130 Ala. 74 (30 So. 503). Where defendant was step-father of victim, a twelve-year-old girl, ignorant and illiterate, evidence to corroborate that of prosecutrix.-Shepherd v. State, 135 Ala. 9 (33 So. 266). Conflict in evidence of prosecutrix as to time of alleged offense. Roberts v. State, 122 Ala. 47 (25 So. 238). Evidence to identify the place where the crime was alleged to have been committed.-Roberts v. State. 122 Ala. 47 (25 So. 238). Failure of state to produce clothing of prosecutrix. -Roberts v. State, 122 Ala. 47 (25 So. 238). Evidence examined and held to

show very indecent and insulting conduct on the part of the defendant, though falling short of showing a felonious intent, and the general affirmative charge should have been given for the defendant.-Jones v. State, 90 Ala. 628 (8 So. 383). Evidence that defendant lived in the family of the prosecutrix and claimed to be her half-brother, is admissible in evidence.-Oakley v. State, 135 Ala. 15 (33 So. 23). Complaint of prosecutrix confined to bare fact and not details of occurrence.-Posey v. State, 143 Ala. 54 (38 So. 1019); Oakley v. State, 135 Ala. 15 (33 So. 23). But defendant may elicit particulars on cross-examination.-Allen's case, 87 Ala. 107 (6 So. 370); Griffin's case, 76 Ala. 29; Barnett's case, 83 Ala. 40 (3 So. 612); Scott's case, 48 Ala. 420. And if part elicited by defendant, state may prove all.-Barnett's case, 83 Ala. 40 (3 So. 612). Dying declarations of child not admissible.-Johnson's case, 50 Ala. 456. Evidence impeaching and sustaining prosecutrix as to her complaint.-Griffin's case, 76 Ala. 29; Allen's case, 87 Ala. 107 (6 So. 370). Competency of child of tender years as witness.-Grimes's case, 105 Ala. 86 (17 So. 184); McGuff's case, 88 Ala. 147 (7 So. 35); Beason's case, 72 Ala. 191. Prior intimate relations of prosecutrix and defendant as tending to show consent.-Allen's case, 87 Ala. 107 (6 So. 370); Jones's case, 104 Ala. 30 (16 So. 135). Her character for chastity as bearing on question of consent.McQuirk's case, 84 Ala. 435 (4 So. 775). Refusal of prosecutrix to submit to physical examination by experts does not as matter of law discredit her testimony.-Barnett's case, 83 Ala. 40 (3 So. 612). Lustful remarks made by defendant touching prosecutrix prior to alleged offense, when admissible.— Barnes's case, 88 Ala. 204 (7 So. 38). Precaution to be observed in trial of rape cases.-Leoni's case, 44 Ala. 110. Conviction may be had for assault to commit rape, or for assault and battery, or for simple assault.-Richardson's case, 54 Ala. 158; Lewis's case, 30 Ala. 54.

7697. (5445) (3737) (4896) (4194) (642) Proof of rape.To sustain an indictment for rape, proof of actual penetration is sufficient, when the act is shown to have been committed forcibly and against the consent of the person on whom the offense was committed.

(Clay's Digest, p. 415, § 16.) Proof of actual penetration sufficient.— Waller's case, 40 Ala. 325. Conduct of prosecutrix implying consent.— McQuirk's case, 84 Ala. 435 (4 So. 775); Allen's case, 87 Ala. 107 (6 So. 370).

7698. (5446) (3738) (4305) (3662) (120) Carnal knowledge of women by administering drug, etc.-Any person who has carnal knowledge of any woman above fourteen years of age, without her consent, by administering to her any drug or other substance which produces such stupor, imbecility of mind, or weakness of body, as to prevent effectual resistance, must, on conviction, be punished at the discretion of the jury, by death or by imprisonment in the penitentiary for not less than ten

years.

(Clay's Digest, p. 414, § 15.) Lewis's case, 30 Ala. 54.

7699. (5447) (3739) (4306) (3663) (121) Carnal knowledge (r.c.c.) of girl under twelve years of age.-Any person who has carnal knowledge of any girl under twelve years of age, or abuses such girl in the attempt to have carnal knowledge of her, must, on conviction, be punished, at the discretion of the

(r.c.c.)

jury, either by death or by imprisonment in the penitentiary for not less than ten years. (Form 31 [25].)

(Clay's Digest, p. 415, § 17.) Distinguished from rape, though a kindred offense. Vasser's case, 55 Ala. 264. Meaning of the word "abuse" in the statute.-Dawkins's case, 58 Ala. 376; Castleberry v. State, 135 Ala. 24 (33 So. 431). When indictment insufficient as to describing child abused.-Nugent's case, 19 Ala. 540. Child under eight years a competent witness under dis cretion of court.-Wade's case, 50 Ala. 164. See Carter's case, 63 Ala. 52; Castleberry v. State, 135 Ala. 24 (33 So. 431). An infant adjudged incompe tent to testify on a former trial may be old enough to testify on a second trial of same case.-Kelly's case, 75 Ala. 21. Evidence that child had venereal disease may be rebutted by proof of her sexual intercourse with other persons about the time alleged.-Nugent's case, 18 Ala. 521. Dying declarations of child, identifying prisoner, incompetent.-Johnson's case, 50 Ala. 456. Indict ment in Code form sufficient.-Beason's case, 72 Ala. 191. May be joined with rape, and prosecution need not elect, though child proved over ten.-Ib. 191. But a conviction cannot be had for this offense under indictment for rape.Vasser's case, 55 Ala. 264. Verdict of guilty, under disjunctive indictment. sufficient.-Johnson's case, 50 Ala. 456. An indictment which charges that defendant assaulted a girl under ten years of age, with intent to carnally know her, is insufficient under this section.-Toulet's case, 100 Ala. 74 (14 So. 403). If under ten (now changed to fourteen) cannot consent.-Ib. Neither violence or threats, or consent vel non, are material, or ingredients of the offense.-Ib. An indictment which charges that defendant "did carnally know, or abuse in attempt to carnally know A. B., a girl under ten years of age, " is sufficient, and a general verdict thereunder is sufficient.-McGuff's case, 88 Ala. 147 (7 So. 35). Defendant cannot, as matter of right, have female alleged to have been ravished by him, undergo a physical examination; this is a matter in the court's discretion.-Ib. Evidence that when the mother of the girl went to where she was, crying, she was stricken by the defendant, held competent; but evidence as to the character of wound or blow inflicted, not relevant.-Oakley v. State, 135 Ala. 15 (33 So. 23). Violence, actual nor threatened, is not an element of the offense, nor is the consent of the female under this section, any defense.-Toulet v. State, 100 Ala. 72 (14 So. 403).

7700. (5448) Carnal knowledge of girl over twelve and under fourteen years of age.-Any person who has carnal knowledge of any girl over twelve and under fourteen years of age, or abuses such girl in the attempt to have carnal knowledge of her, must, on conviction, be punished by a fine of not less than fifty, nor more than five hundred dollars, and may be imprisoned in the county jail for not more than six months. This section, however, shall not apply to boys under sixteen years of age.

(Feb. 15, 1897, p. 944, § 1.) Section 7700 (5448) held not to repeal § 7699 (5447) in toto; the two sections are inconsistent where the age of the girl is between ten and fourteen; effect must be given to both, so far as consistent.Handy v. State, 121 Ala. 13 (25 So. 1023). An indictment describing the age of the girl as under fourteen, without averring that she was over ten, is bad on demurrer.-Handy v. State, 121 Ala. 13 (25 So. 1023); Oakley v. State, 135 Ala. 15 (33 So. 23).

7701. (5449) (3740) (4307) (3664) (122) Carnal knowledge of married woman by falsely personating husband.—Any person who falsely personates the husband of any married woman. and thereby deceives her, and by means of such deception