Oakley v. State

• Decision Date: 20 November 1902
• Citation: 135 Ala. 15,33 So. 23
• Parties: OAKLEY v. STATE.
• Court: Alabama Supreme Court

33 So. 23

135 Ala. 15

OAKLEY v. STATE.

Supreme Court of Alabama

November 20, 1902

Appeal from law and equity court, Walker county; W. B. Appling Judge.

Oscar Oakley, alias Oscar Berry, was convicted of rape, and appeals. Reversed.

The defendant was tried under the following indictment: "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 an order 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 in 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 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 second degree, and the court being of the opinion that the public good requires that a grand jury for said county should be immediately drawn and impaneled as required by law to investigate said offenses, it is therefore ordered by the court that the sheriff of Walker county Alabama, forthwith summon 18 persons, possessing the requisite qualifications of grand jurors, to appear at the courthouse of said county on Monday, the 11th day 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 returned 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 a special venire, consisting of 40 duly qualified jurors, be regularly drawn, summoned, and impaneled 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 not drawn by any person. (2) Because 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) Because the grand jury that found this indictment was organized to investigate more than one offense. The state moved the court to strike from the file the motion to quash the indictment because it was not filed until after the defendant had pleaded to the merits. This motion was granted, and to this ruling the defendant duly excepted. The defendant then moved the court to allow him 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 purpose 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 defendant duly excepted. This motion, however, does not appear in the bill of exceptions, but is shown only by the record. When 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 the indictment charges a felony, and the second count charges a misdemeanor. (2) For that the first count charges an offense punishable by death or imprisonment in the penitentiary, and the second count charges an offense that is punishable by neither 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 10 years at the time of the alleged commission of the said offense. (2) Because the said count fails to allege that the said Mattie Oakley was over the age of 10 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 10 years. The state moved the court to strike from the file the defendant's demurrer, upon the ground 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 plea of not guilty and to interpose his demurrer. 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 was introduced by the state testimony corroborating the testimony of Mattie Oakley. One Sam Fowler was introduced as a witness for the defendant, and during his examination he testified that the defendant lived in the house with Mrs. Oakley as one of the family, and he 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 prosecutrix and her mother, Belle Oakley. It was shown by the evidence for the state that these letters were...