The Birmingham age-herald. [volume] (Birmingham, Ala.) 1902-1950, 1903-03-15
Opinions Rendered
By Supreme Court

Baker, ct. al, VS.. Selma Street Subur-
ban Railway Company-Bill in Equity
for Injuncton-Appeal from the City
Court of Selma.
1. Street railroads; right of owner of
lots on streets to enjon construction;
nuisance.-An electric street railroad Is
not per Sc a public or private nuisance,
and is not a new servitude imposed upon
the land, for which the owners of prop
erty abutting on the street are entitled
to compensation, or which they nave
right to enjoin the construction OF.
>. Same-To entitle the owners OF
property abutting on street to enJoin
in the construction of a street railroad
along such street, it is incumbent on
! them to aver that such railroad would
be a nuisance in fact anG that they would
suffer special injury different in kind
from that sustained by the general pub
lie.
2 Same, when bill without equity;
concusions.-A bill filed by property own
ers in a city sought to enjoin the con-
struetion of an electric street railway line
(which the municipality had consented 10
and authorized along the street on whicn
their residence property abutted' aHeglhs
that they had owned ana occupied theii
said nronerty for more than twenty
wears. that the erection of the poles near
the sidewalk line, with wires strung
thereon would materially obstruct SAID
street as a highway for Vehicles anu
thereby constitute a public nuisance,
that the noise dust and vibration caused
by the running of cars over ana upon
said street and the danger OF injury anu
damage to property will render sald
nropertv undesirable and greatly diminish
its value. Held that the bill stated con-
illusions rather than facts. and was
without equity.
A. street railroads; construction; 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 UNI
slSllful operation of such road, has an ad-
eouate remedy by action at law.
Affirmed Opinion by HARRISON, j.
Oakley VS.. the State-Indictment for Rape
Anneal from Walker County Law ana
Equity Court
l. Walker Law and Equity Court; pow
err to organize a special jury; motion to
mash. Code. Sec. 5O0O.-Under the act
creating the Walker County Law and
Equity court, approved December D.
1900. that court has power to or
ganize a special grand jury under
section 5000 of the Code.
2 Same; order for special grand jury;
Code section 5000; describing offense to be
investigated or naming persons charged.
in an order calling a special grand jury
under section 5000 of the Code 1t Is not
necessary that the court chall particular
w describe the offense to be investigated
or shall specify the name of person as
being charged with Its commission.
8. Nolle prosequi, effect of; error with
out injury-The entering of mol pros.
upon one count Of an indictment. before
trial renders harmless any error IN
overriding demurrer to such court
4. Plea of former conviction; burden of
proof The burden of proving a plea or
former conviction is on the defendant.
4. Rape; evidence as to complaint by
female.-On a trial for rape, 1t is error
to allow the state, on direct examination
Of the person on whom the rape il
CHARGED 10 have been committed, to ask
her, did you tell what he had done TO
you to anybody?'
g. Criminal law; evidence medical
books--In criminal case, evidence OF a
! physician, explaining the meaning OF
technical terms used In a medical book
in evidence, is admissible
7 Charge as to degree Of proof to war
rant
proper to refuse a charge, that The
humane provision of the law is that there
should not be a conviction unless the evil
dence to a moral certainty. excludes
every reasonable hypothesis other than
that of the guilt of the accused"
8. Rape age of female.-Rape can be
committed on a female under fourteen
and over ten years OF age.
9. Same; Indictment; offense for which
conviction can be had.-Under an indict-
| ment for rape. a conviction may be had
| for rape. an assault with intent to COM
| nit rape, or an assault ana battery.
TO- General confrmative charge; when
| improper The general Affirmative,
charge Is never proper where the evidence
is conflicting
| II. Charge to the jury; charge tending
to produce mistrial.-1t is not the duty
I of a court in a criminal case to charge
| that 'ff any member Of the jury has a
| reasonable doubt as to the defendants
guilt and any other member Of the jury
does not have a reasonable doubt OF de-
| PENDANTS guilt. 1t is the duty Of the jury
| not to return verdict either way" as
| such charge in effect instructs the jury to
j make mistrial. on the hypothesis stated.