The motion to quash the indictment was properly overruled.—Oakley v. The State, ante, p. 23.
The second count of the indictment, after demurrer interposed, and overruled, was eliminated by the order of the court of nolle prosequi entered before trial, which relieved the indictment of its objectionable feature and, of course, rendered the action of the court overruling the demurrer innocuous.—Williams v. The State, 130 Ala. 31; Salm v. The State, 89 Ala. 56.
Previous to the trial of the issue on the plea of not guilty the issue presented by the plea of former conviction was tried resulting in a verdict in favor of the State. It cannot be doubted that the burden of proof was upon the defendant to prove this plea. This he utterly failed to do and the court corectly gave the affirmative charge in favor of the State.
This brings us to a consideration of the exceptions reserved by the defendant upon the trial under the first count of the indictment upon defendant’s plea of not guilty. The objection to the question propounded by the *35solicitor to Mattie Oakley, upon whom the rape is alleged to have been committed, “Did you tell what he had done to you to anybody?” should have been sustained. Bray v. The State, 131 Ala. 46; Oakley v. The State, supra.
The only other exceptions taken to the admission and exclusion of evidence insisted upon in brief of counsel relate to the rulings of the court in admitting certain parts of medical works and allowing a physician to explain to the jury the meaning of the technical terms Used in those books. The rulings of the court in respect to these matters Avere free from error. We have, however, examined all the other exceptions reserved to the admission and exclusion of evidence and find no merit in any of them.
Charges numbered 1 and 11 requested by defendant were properly refused upon the authority of Bohlman v. The State, infra, p. 45; 33 So. Rep. 44.
Charges 20 and 26 were evidently framed upon the theory that the offense of rape cannot be committed upon a female under fourteen and over ten years of age. This is not the law and their refusal Avas proper.—Vasser v. The State, 55 Ala. 264.
The second count of the indictment having been eliminated by the order of nolle prosequi, charges 25, 27 and 30 were correctly refused.
. Under the first count of the indictment the defendant could be convicted of either rape, assault with intent to commit rape, or assault and battery. Charge 28, if given, Avould have precluded the jury from convicting the defendant of either of the lesser offenses, although they entertained no reasonable doubt of his guilt of the One or the other of them. Its refusal was proper.—Richardson v. The State, 54 Ala. 158.
Charge 33 was the general affirmative charge, and, of course, its refusal was proper.
■ The effect of charge 31 was to instruct the jury, upon the hypothesis stated, to make a mistrial. This is not the duty of the court.
Reversed and remanded.