The Montgomery advertiser., 1903-03-15

bAhER, ct al, V. SELMA olnEEi %
 SUBURBAN RAILWAY co.
 Bill in Equity for Injunction.-Appeal
 from City Court of Selma.
 l. Street railroads; right of owner of lots on street to enjoin construction; nuisance.-An electric street railroad is and is not a new servitude imposed upon the land Tor which the owners Of prop erty abutting on the street are entitled to compensation, or which they have right to enjoin the constructor or. property abutting on street to enJoin the construction of a street railway along such street, it Is incumbent on them to aver that such railroad would be nuis- ance in fact and that they would suffer special injury different in kind from that sustained by the general public.
 3. Same; when bill without equity; con clusions.-A bill filed by property owners in a city sought to enjoin the construc- ton of an electric street railway line (which the municipality had consented to and authorzed) along the street on which their residence property abutted, alleg- ing that they had owned and occupied their. said property for more than twenty years; that the erection of the poles near the sidewalk line. with wires strung thereon. would materially obstruct said street as highway for vehicles and thereby constitute a public nuisance; that the noise, dust and vibration caused by the running of cars over and upon said street and the danger of injury and dam age to property of complainantS in going to and from their said property will rem der said property undesirable and greatly diminish its value. Held: That the bills stated conclusions, rather than facts, and was without equity.
 4. Street railroads; constructions; ac- tions.-One who suffers damage, by the improper construction of an electric street railroad along street in front of his property, or by the negligent or unskil fnrl nf hoe nVn dA guate remedy by action at law.
 Affirmed. Opinion by Haralson, J.
 OAKLEY V. THE STATE.
 indictment for Rape.-Appeal from the
 Walker County Law and Equity Court
 l. Walker Law and Equity Court; pow CT to organize special grand jury; mo- tion to quash; Code, Sec. 5O0O.-Under the act creating the Walker County Law and Equity Court, approved December 5, 1900 that court has power to organize a spe- cial grand jury under Section 5000 of the Code.
 2. Same: order for special grand jury; Code. Sec. 5000; describing offense to be investigated or naming person charged In an order calling a special grand jury under Section 5000 of the Code, 1t is not necessary that the court shall particular ly describe the offense to be investigated or shall specify the name of a person as being charged with It's commission. 5. Nolle prosequi effect of; error with out injury.-The entering of a mol pros upon one count of an indictment, before trial, renders harmless any error in over ruling demurrer to such count 4. Plea of former convictions; burden of proof.-The burden of proving a plea of former conviction is on the defendant. 5. Rape; evidence as to complaint by female.-On trial for rape, 1t is error to allow the State, on direct examinat ton | of the person on whom the rape Is charg- ed to have been committed, to ask her, f0t hot h0 AaI k~ | to anybody"
 G.. Criminal law; Svidence; medical | books-In criminal case evidence of a physician. explaining the meaning of technical terms used in a medical book | in evidence, is admissible.
 [. Charge as to degree of proof to war rant conviction.-In a criminal case 1t is | proper to refuse a charge, that '"rhe humane provision of the law Is that there should not be a conviction unless the | evidence. to a moral certainty, excludes | every reasonable hypothesis other than that of the guilt of .ne accused" | 8. Rape; age of fematc.-Rape can be committed on a female under IA and over | 10 years of age.
 g. Same; indictment: offenses for which l conviction can be had.-Under an indict- | ment for rape, a conviction may be had for rape, an assault with intent to com init rape, or an assault and battery | 10. General and affirmative charge; | when improper.-The general affirmative | Cndrse IS never proper where the evidence Is conflicting.
 Il. Charge to jury; charge tending to | produce mistrial.-It is not the duty of | the court in a criminal case to charge | that "If any member of the jury has a | reasonable doubt as to defendants guilt | and any other member of the jury does | not have a reasonable doubt of defend
 ants guilt. 1t Is the duty of the jury no
 to return verdict either way" as sucf | charge in effect instructs the jury tC | miStrial the hVn0fheSiG Reversed and remanded. Opinion by l Tyson, J.