141 So. 201 224 Ala. 540 (Cite as: 141 So. 201)

POWELL ET AL. v. STATE.

George W. Chamlee, Sr., and George W. Chamlee, Jr., both of Chattanooga, Tenn., and Joseph R. Brodsky, Irving Schwab, Allan Taub, Elias M. Schwartzbart, Joseph Tauber, and Sidney Schreiber, all of New York City, for appellant.

Thos. E. Knight, Jr., Atty. Gen., and Thos. Seay Lawson, Asst. Atty. Gen., for the State.

KNIGHT, J.

Ozie Powell, William Roberson, Andy Wright, Olen Montgomery, and Eugene Williams were jointly indicted, along with three others, by a grand jury of Jackson county, charging them, and each of them, with the offense of rape. The victim of their alleged offense was Victoria Price, a young white woman who lived at or near the city of Huntsville, in this state, and who, at the time of the commission of the alleged offense, was riding upon a freight train between Stevenson and Paint Rock, in Jackson county.

The trial of the appellants was had in the circuit court of Jackson county, on April 8, 1931, resulting in the conviction of the defendants of the offense of rape, as charged in the indictment, and the imposition of the death penalty upon each. And on April 9, 1931, each of the defendants was sentenced to death in accordance with the verdict of the jury. These sentences were, upon motion of the defendants, suspended pending this appeal.

With respect to the appellant Eugene Williams, in addition to the matters presented for review and which are brought forward by each of the defendants, a further question is raised by this appellant growing out of, and based upon, the contention made by him that he was, at the time of his trial, under sixteen years of age, and that the circuit court of Jackson county therefore had no jurisdiction over him, or over his case. We will first consider the record with reference to any errors that may there appear, and which affect all the defendants, leaving the question that is presented upon age of appellant Williams to be later discussed and considered in this opinion.

The state's theory of the case is that the woman, Victoria Price, and her companion, Ruby Bates, had been on a trip to Chattanooga for the purpose of seeking employment; that on March 25, 1931, while these two women were returning to Huntsville, riding in a gondola car, attached to a freight train, and between Stevenson and Paint Rock, the defendants and other associates, all negroes climbed over and into this gondola car, engaged in a fight with seven white boys, who were riding in this gondola car with the two white women, and finally, after beating up and overpowering these white boys, either threw them bodily out of the car, or forced them to leave it; that the defe