must necessarily be tried and determined by the court before the same is permitted to go to the jury as evidence; but in such trial the accused has a right to participate, and to cross-examine the witnesses by whom the confession is sought to be proved.

CRIMINAL LAW-RAPE- AGE OF CONSENT. A female under the age of twelve years is incapable of yielding consent to sexual intercourse.

Fournet and Pujo, and W. G. McDonald, for the appellant.

Walter H. Rogers, attorney-general, for the appellee.

WATKINS, J. The defendant prosecutes this appeal from a verdict and sentence to lifetime imprisonment under an indictment for rape, and he relies on three bills of exception reserved to the rulings of the trial judge during the progress of the trial, and one taken to his charge to the jury.

1. The three bills which were reserved during the progress of the trial appertain to the judge's refusal to permit defendant's counsel to cross-examine three witnesses of the state preliminary to their giving in evidence certain alleged confessions of the defendant, the object of defendant's counsel, as stated in his bills of exception, being to ascertain whether or not the alleged confessions were freely and voluntarily made, as a condition precedent to their introduction as evidence.

The judge assigns as his reasons for refusing to permit defendant's counsel to cross-examine state witnesses, that "the court, and not the jury, nor the opposite party, is to be satisfied as to the competency of witnesses to testify, or the admissibility of such evidence; that the right of the opposite party to affect the weight of the evidence on the examination is not abridged in the least; the witness having testified that she heard the entire statement of the accused, and remembered the substance of all of it, and that it was made by him voluntarily, without restraint or influence of any kind; and she stated the circumstances under which it was made."

While it is no doubt true that it is for the court to be satisfied of the competency and admissibility of evidence, and not that of the jury, it is equally the right of an accused party to see that no incompetent or inadmissible testimony be adduced against him; and the fact that the trial judge feels satisfied of the competency or admissibility of certain proffered testimony cannot exclude the right of the accused to question it.

The competency and admissibility of testimony must necessarily be tried and determined before same is permitted to go to the jury as evidence. Recognizing this rule of law, the

judge entertained the investigation of the question of the admissibility of the defendant's alleged confession, and allowed questions to be put to the state's witnesses tending to elicit the statements quoted; but when defendant's counsel demanded the right to cross-examine these witnesses in the premises, his demand was refused for the reasons assigned. This was error of the judge.

Thus holding was virtually to decide that the determination of the admissibility of evidence is an ex parte proceeding, in which the accused has no concern whatever.

To say that on the trial the defendant will have the right to offer other testimony for the purpose of disparaging the evidence adduced by witnesses for the state, in reference to the confession, is no answer to the objection that is pressed here. He had an undoubted right to participate in the trial of the preliminary issue, the admissibility of the alleged confessions vel non, before the evidence was permitted to go to the

jury.

That right was distinctly recognized by us in State v. Platte, 34 La. Ann. 1061. The question is formulated by the court thus: "The first matter presented to our consideration is the ruling of the judge a quo, refusing to hear evidence offered by the accused on the trial of the cause, relating to the character of the alleged confession of the accused," etc.; and of this ruling the court said: "It is elementary that the confession of an accused person is not admissible against him unless it is a free and voluntary confession, and its character as such must be first shown as a prerequisite to its admission. When the state offers to make such proof, the issue as to the character of the confession is properly raised, and both sides have a right to be heard on this issue. The inquiry on a question of such vital importance to an accused should be free and full, and it is not to be closed at the very instant that the state manages to eke out from the prosecuting witness that she, the witness, had made no threats or promises, and all opportunity denied to the other party to be heard. And the judge had no right to conclude, as he says in the bill he did do, that the testimony offered by the accused could not be sufficient to overthrow the facts shown by the [state] witness."

The trial judge in the instant case has fallen into a similar error. The accused had an undeniable right, by his counsel, to cross-interrogate the witnesses of the state in reference to the

time, place, and circumstances of the alleged confessions, and to ascertain for himself whether same were voluntarily made. He cannot be restricted to the sole right of attacking the confessions, once they are introduced in evidence, by other and countervailing proof.

This right was recognized and pursued in State v. Collens, 37 La. Ann. 607.

To the same effect is State v. Peters, 14 La. Ann. 521; 1 Greenl. Ev., sec. 219.

On this ground, we think the case should be remanded for a new trial.

2. The fourth bill of defendant was taken to the charge of the judge to the effect that "a girl under twelve years of age is incapable, under the law, of yielding consent to sexual connection."

Having decided to remand the case, this question does not necessarily arise now, but we think it preferable that it should be determined, in order that the new trial may be facilitated.

The only case to which we have been referred as bearing on the question is that of State v. Tilman, 30 La. Ann. 1249, 31 Am. Rep. 236, in which our predecessors held that "carnal intercourse with a female under twelve years of age amounts to the crime of rape." The court announced that no statute of this state has declared that a female under twelve years of age is incapable of giving consent to sexual intercourse; but upon the principles of the common law and analogous provisions of our own, it thought a girl under twelve years of age was incapable of yielding such consent.

That opinion appears to be well reasoned, and the authorities cited pertinent, and we are not disposed to dissent from the views therein expressed. We therefore approve of the ruling of the trial judge in this respect.

It is therefore ordered and decreed that the verdict and judgment appealed from be annulled and set aside, and that the cause be remanded to court a qua, to be therein proceeded with according to law and the views herein expressed.

RAPE- AGE OF CONSENT. When the female is of such tender years as to not understand the nature of the act, she cannot consent to carnal intercourse: Note to Smith v. State, 80 Am. Dec. 374. The age of consent is generally fixed by statute. In Louisiana it is twelve years: State v. Tilman, 30 La. Ann. 1249; 31 Am. Rep. 236. In Michigan it is fourteen years: People v. Glover, 71 Mich. 304. In Nebraska is fifteen years: State v. Wright, 25 Neb. 38. In Iowa it is thirteen years: State v. Casford, 76 Iowa, 330.

CONFESSIONS-DUTY OF COURT. The court is the sole judge of the competency of confessions, and before admitting a confession in evidence, it should conduct a preliminary examination, out of the presence of the jury, to determine whether such confession is or is not competent: Ellis v. State, 65 Miss. 44; 7 Am. St. Rep. 634, and note. And the fact that the court admits a confession as competent does not prevent the accused from producing evidence before the jury with respect to the weight of such confession, for the jury alone must determine its weight: Ellis v. State, 65 Miss. 44; 7 Am. St. Rep. 634, and note.

NUISANCE, CONTINUING LIABILITY FOR. -The building and maintaining of a railway in such a manner as to bring together natural streams of water so as to discharge them through a culvert, at a place different from that of the natural discharge of any of them, whereby their waters are com bined and thrown upon the lands of a private proprietor, creates a continuing nuisance, and if the owner of the lands at the time the railway was built subsequently conveys them, his grantee is entitled to maintain an action for damages suffered after his conveyance was executed, by the overflow of water and the depositing of sand on such land. NUISANCE-PRESCRIPTIVE RIGHT TO MAINTAIN. If an act is wrong at the outset, its continuance cannot become rightful, and if its continuance will occasion damages varying in quantity with the seasons, it is a continuing nuisance and an invasion of plaintiff's right from day to day, and he may select his own time for bringing an action therefor, and is not barred by the lapse of six years from the erection of the structure constituting the nuisance, though it is of a permanent character.

ACTION brought for damages caused by the discharge of water upon lands of the plaintiff. The injuries suffered by him were the result of the construction of a railway in 1880, alongside of lands which he purchased after that date. In building its road the defendant had erected an embankment to support its track, through which a culvert was built. The course of eight streams was changed by defendant, so that their waters would discharge through this culvert at a place diferent from that in which they naturally flowed. In 1887 there were heavy rains, which by reason of the culvert were caused to flow upon the lands of the plaintiff, and to overflow it with