[Hall v. The State.] from other States, have settled a test which may be stated thus, namely: If the same identical act enters into both offenses as a necessary ingredient of each, a conviction or acquittal of one is a bar to a prosecu tion for the other. This is, as we believe, a safe rule, one well calculated to protect the citizen against oppressive prosecutions and at the same time subserve the deterrent purposes of the administration of the criminal law. While the ends of private vengeance might be gratified by repeated prosecutions for the same act, under the name of different crimes between whose elements slight differences exist, yet we submit that the public good does not require that prosecutions for crime shall degenerate into persecution. If such were to be allowed, there is no reason why in the present instance, this defendant might not be sucessively prosecuted for rape, seduction, carnal knowledge of a girl under 14 years of age, and adultery, all based upon the same act, because under an indictment for either there could be no conviction for one of the others, and because the facts to establish these several crimes are in each case different. And there was, indeed, some evidence tending to show each of these crimes.--Johnson v. State, 12 Ala. 840; Foster v. State, 39 Ala. 229; Moore v. State, 71 Ala. 397; Adams v. State, 48 Ala. 421; Tuberville v. State, 40 Ala. 715; Mooney v. State, 33 Ala. 419; Hurst v. State, 86 Ala. 604; Powell v. State, 89 Ala. 172; Stone v. State, 115 Ala. 121; O'Brien v. State, 91 Ala. 25; Gunter v. State, 111 Ala. 23; Gordon v. State, 71 Ala. 315; Wilcox v. State, 40 Am. Rep. 52; Fiddler v. State, 7 Humph. 508; Hirshfield v. State, 11 Texas App. 207; State v. Cameron, 3 Heisk. 78; Clem v. State, 13 Am. Rep. 369; State v. Damon, 2 Tyler, 387; State v. Lewis, 11 Am. Dec. 741; Roberts v. State, 58 Am. Dec. note, p. 539; People v. State, 57 Barb. 46; State v. Cooper, 25 Am. Dec. 490; State v. Emery, 54 Am. St. Rep. 878; State v. Ingles, 2 Hayw. 4; State v. Com., 2 Murphy 371; State v. Stanly, 4 Jones 290; State v. Cross, 9 Am. St. Rep. 53; State v. Colgate, 47 Am. Rep. 507; Hinkle r. Com., 4 Dana 518; Copenhagen v. State, 15 Ga. 264; [Hall v. The State.] Holt v. State, 38 Ga. 187; Com. v. McIlvain, 17 Pa. Co. Ct. Rep. 174; s. c. 5 Pa. Dist. Rep. 175. The defendant's testimony given on the trial under an indictment for rape was an involuntary statement, and for that reason was not admissible on the trial for seduction. This court may well take judicial knowledge of the fact that at the trial of the rape case it was strenuously argued by the State that defendant was moved by fear of conviction to state falsely that the woman consented. Could any one deny the legitimacy of the argument? Is not such precisely what renders confessions or admissions in criminal cases inadmissible? While we have been able to find no case in this or any other State strictly analogous to this, we refer to the following authorities as illustrative of the unfavorable light in which confessions are regarded by the court and of the rules governing their admission.-1 Greenl. on Ev. (16th ed.), §§ 218-228; 6 Am. & Eng. Ency. Law (2d ed.), pp. 560568, 526, 529; Wilson v. State, 84 Ala. 426; Wilson v. State, 110 Ala.1; Kelly v. State, 72 Ala. 244; Redd v. State, 69 Ala. 255; Lacey v. State, 58 Ala. 385; Ward v. State, 50 Ala. 120; Gregg v. State, 106 Ala. 44; Bonner v. State, 55 Ala. 242. There was no proof of the corpus delicti. Defendant's testimony on the rape trial should not have been admitted for another reason, namely, there was no independent proof of the corpus delicti. This requirement of the law is met by evidence not merely of the commission of the deed, but also of its criminal character, and some authorities say, of the agency of the defendant. Wharton's Crim. Ev., §§ 324-329; Pitts v. State, 43 Miss. 472; 7 Am. & Eng. Ency. Law (2d ed.), 861 and notes; Winslow v. State, 76 Ala. 42; Coalten v. People, 41 Am. St. Rep. 346; Harris v. State, 19 Am. St. Rep. 837; Matthews v. State, 55 Ala. 187. The portions of the court's general charge, to which exceptions were reserved, were erroneous.-Munkers v. State, 89 Ala. 94; Wilson v. State, 73 Ala. 527; Cunnigham v. State, 73 Ala. 51; Cooper v. State, 90 Ala. [Hall v. The State.] CHAS. G. BROWN, Attorney-General, and JOHN A. LUSK, for the State.-The demurrers to the motions to quash the indictment and the plea in abatement thereto were properly sustained.-Clair v. State, 40 Neb. 534; 28 L. R. A. 367; Code, § 5045; United States v. Terry, 39 Fed. Rep. 355; 1 Green's History of English People, 167. The special plea of autre fois acquit presented no bar, and the demurrer was correctly sustained. A former acquittal is no bar to a subsequent prosecution, unless the accused could have been convicted upon the first indictment on proof of the facts averred in the second indictment.-1 Mayfield Dig., p. 497, § 120; Durham v. People, 39 Am. Dec., 407. A conviction or acquittal on an indictment for larceny is not a bar to a prosecution for receiving or concealing the stolen goods.-1 Mayfield Dig., pp. 496-7, SS 114-20. A conviction or acquittal on an indictment charging burglary is not a bar to an indictment charging larceny growing out of the same act.-1 Mayfield Dig., p. 497, § 132; Bowen v. State, 106 Ala. 178. A plea of former acquittal is good whenever the facts charged in the second indictment would, if proved, have sustained a conviction on the first indictment under which defendant was acquitted.-Note to Stewart v. State, 60 Am. St. Rep. 37. An acquittal for rape is not a bar to a subsequent prosecution for incest predicated on the same act of sexual intercourse.-Stewart v. State, 60 Am. St. Rep. 35. The defendant's testimony upon the trial under an indictment for rape, was admissible in evidence.-Bibb v. State, 83 Ala. 84; Wilson v. State, 110 Ala. 1. TYSON, J.-No objection was taken to the organization of the grand jury, in the court below, that preferred the indictment upon which the defendant was convicted. But this is of no consequence, if the illegality of its organization affirmatively appears in the record, since this court would be compelled to take the point [Hall v. The State.] as no valid conviction can be based upon a void indictment.-Finley v. State, 61 Ala. 201. The record discloses that the number drawn to serve on the grand jury was eighteen. That only fifteen of this number appeared and that by reason of an excuse allowed by the court, one other was not required to serve, thus reducing the number to fourteen. Thus "a contingency existed in which the court had power and it became, a duty, to complete the jury, by ordering the summons of a sufficient number of qualified citizens to supply the deficiency. In the exercise of this power, the court could order a summons of only such number as would increase the jury to fifteen or of such number to increase it to twenty-two or to an intervening number, as in its discretion was deemed best for the administration of justice. Either number would, under the statute, complete the grand jury when empannelled and sworn, and the selection of either is not an excess of the power conferred upon the court.-Kilgore v. State, 74 Ala. 1. The court ordered the summoning of six persons and, if all had appeared, this would not have increased the number to twenty-one. Presumptively only three ap peared who were placed upon the jury, making the grand jury composed of seventeen persons. There was, therefore, no necessity, under the terms of the statute, of having the names of those three persons written on separate slips of paper, folded, placed in a box and drawn.-Code, § 5023. Besides, we cannot affirm that this was not done. There is, therefore, no merit in the contention that the grand jury was illegally organized. The matter attempted to be set up in the plea of abatement was not proper subject for plea. There was, therefore, no error in sustaining the demurrer to the plea. Nor can the weight or sufficiency of the evidence upon which the grand jury acted in finding the indictment be inquired into.-Sparrenberger v. The State, 53 Ala. 481. It may be doubted whether the overruling of the mo tion to quash the indictment upon the grounds relied upon is revisable by this court-whether it is not a matter addressed to the discretion of the trial court.-Johnson v. State, 133 Ala. 38; Bryant v. The State, 79 Ala. [Hall v. The State.] 282; Bishop on Crim. Proc (3rd ed.), § 761; The State v. Dayton, 3 Zarbriskie (N. J.), 49; The State v. Baldwin, 1 Dev. & Bat. (N. Car.) 195; State v. Rosenburgh, 7 Wal. 580 and other cases cited in notes 4 and 5 in Bish. Crim. Prac. under section 761. However this may be, we feel sure that there is no merit in any of the grounds of the motion. We entertain no doubt as to the correctness of the rule declared in Spigener v. The State, 62 Ala. 383, where this court, speaking through STONE, J., to a motion to quash an indictment or to strike it from the files "because the same was not voted or preferred as a true bill," said: "The statutes require the grand jurors to take an oath that they will keep secret the State's counsel, their fellows and their own.Code of 1876, section 4755; see, also, sections 4134-5, [SS 5024-5, Code, 1896]. Indictments, when found, are presented to the court in open session by the grand jury as a body. This is a solemn, official affirmation to the court that the bills then presented, indorsed by the foreman true bills, and signed by him, are the findings of at least twelve of the grand jury. The grand jurors being present, if any bill, so presented, was unauthorized by the requisite finding, the fact should then be made known. The indictment being returned and delivered to the court, is then indorsed by the clerk and filed in his office, and becomes a record of the court.-Code of 1876, sections 4677, 4821, [Code of 1896, §§ 4914 and 4916]. Indictments having these solemn sanctions thrown around them, it is not permissible to receive testimony, either of the grand jurors, or any other person cognizant of the facts, to show how any grand juror, or any number of them, voted on any particular finding. The record cannot be disproved in this way." It would seem as a logical deduction from the principle declared above, that the conduct of the solicitor in the matter of advice to the grand jury and of the presiding judge in giving them special instructions cannot be allowed to impeach the record unless their conduct amounted to a fraud of such sort as would authorize a court to go behind and set aside judgments and decrees. But, independent of this consideration, in view of the imposition |