Allred v. State

44 So. 60 | Ala. | 1907

HARALSON, J.

The defendant Avas tried for bastardy, before a justice of the peace, on an affidavit and Avarrant SAVorn out before him by the woman, Lettie Morrison, the prosecutrix, and on appeal to the city court of Bessemer, the case was there tried on the affidavit made before the justice, without the filing of a complaint by the solicitor.

The affidavit charged that James Allred, the defendant, Avithin twelve months before the making of the affidavit, did in said county (of Jefferson), impregnate Lettie Morrison, a Avoman, alleged to be single, and that she was then in a pregnant condition, in said county, and that said James Allred, a man, was the cause of said pregnancy, etc.

The Code of 1896 (section 4381) provides, that “when any single Avoman, pregnant with, or delivered of a bastard child, makes complaint on oath to any justice of the county where she is so pregnant or delivered, accusing anyone of being the father of such child, such justice must issue a Avarrant against such person,” etc.

The defendant demurred to the affidavit.

First, because the complaint does not allege that the prosecutrix is pregnant with a bastard child. The word “bastard” means, “born out of lawful matrimony; illegitimate ; lacking genuineness; suprious; adulterate.”— Webster. The affidavit alleges that Lettie Morrison is a single woman, and is in a pregnant condition, and that defendant, a man, “is the cause of said pregnancy,” and that he did impregnate her. This was equivalent to an averment that she was pregnant with a bastard child. The defendant was not mistaken or misled by allegations of the affidavit, in this respect.

The second ground of demurrer was, that the affidavit does not charge that defendant was the father of said bastard child. If the affidavit was, that prosecutrix was single, and defendant impregnated her, and was the cause of her pregnancy, the averment is clear that he was the father of said unborn child with which affiant was pregnant.

The third and fifth grounds are as wanting in merit as the second.

The fourth ground is without any merit, and in contradiction of the affidavit.

So, it appears the demurrer was properly overruled. For the same reasons, on the same grounds, the court did not err in overruling the motion to strike the affidavit and Avarrant, and to quash the same.

Dr. Waldrop testified, that the usual period of gestation is 280 days from the beginning of the last menstrual flow; that a child is born, usually, in 270 days from the time of inception; that it may go over or under that time; that it runs from 240 to 3Ó0 days, though the usual period is as stated; that young women, as a rule, go a shorter period before the birth of a child, than is usually the case, and that if the sexual intercourse by which a Avoman was impregnated occurred 25 days after the beginning of the menstrual flow, then the child Avould, ordinarily, be born 255 days from the time of such intercourse, etc.

The witness, M. B. Morrison, ivas asked by defendant’s counsel, “Was the defendant discharged a.t the first trial?” An objection to the evidence was properly sus-tained, if for no other reason, for the one, that it did not appear that there had been a former trial before the justice, other than the one appealed from, in which defendant was found guilty by the justice.

Lettie Morrison, the complainant, testified, that she had sexual intercourse ivith the defendant at a certain time (naming the place), which she said was on the night of November 25, 1905, and defendant denied that he had intercourse ivith her at that time, or at any time in November, or December of that year, or in January or February, 1906. He did not deny having had intercourse with her at some time. A lot of letters, made the basis of exceptions from 6 to 13 inclusive, from prosecutrix to defendant, which were dated April 3, June 22 and 23, March 23, and September 9, 1905, and others bearing no date, the character of which letters was friendly, though perhaps imprudent, and indicate a fondness of prosecutrix for defendant, but nothing of a criminal intent on her part towards him or any other person, — were on objection of the state excluded. Upon what theory they were sought to be introduced, is not apparent. Defendant specifically denied having had intercourse with prosecutrix near the period of gestation, and it was immaterial that he had had such intercourse at or about the time these letters were Avritten, since they were not written during the period of gestation. They were, therefore, under the issue, immaterial.

The defendant asked Dink Fitzpatrick, “Were you going with her (the prosecutrix) in September, 1905?” This question called for wholly imamterial. evidence. That time was not within the period of gestation, and simply going with her, without more, ivas not criminal.

iMe prosecutrix testified, that she had nevef had intercourse With Dink'Fitzpatrick, or with any other man than thé defendant. Thé defendant propounded to Dink Fitzpatrick certain questions; numbered from 16 to 21 inclusive (as set out on page 16 of the transcript), — alt of' which, were intended to- contradict the prosecutrix, in the statement made by her that she had never had sexual intercourse with him; and some of them, seeking tb elicit the answer' that he had had such connection" with her within the period of gestation. The court, very pkopelly, would' not allow the questions to be answered.

'"The Avitness was afterwards allowed to state, that he had had intercourse with prosecutrix, at a certain place, ifi'thé months of November and December, 1905.' It was permissible for the defendant to show that prosecutrix had sexual interco-ursé within the period of gestation, hilt not tó show such acts committed by her at other times.

'The questions propounded to Bessemer Nail were' properly disalloAved, the proof of sexual intercourse inquired about, not being within the period of gestation.

Eegused. charges 7 and 8, assert correct proposition, and should have been given.

The other charges refused were faulty, and were properly" refused, for one good reason or another.

Eévérsed and remanded.

Tyson; C. J., and Simpson and Denson, JJ., concur.