Bell v. State, 124 Ala. 94

Bell v. State

124 Ala. 94 | Ala. | 1899

DOWDELL, J.

— That a notary public with ex officio poAvers of a justice of the peace, has the same jurisdiction in bastardy proceedings under the statute as a justice of the peace, cannot noAV be questioned. — Douglas v. State, 117 Ala. 186, and authorities there .cited. The affidavit in the present case was made before H. D. Brunson, a justice of the péace, who issued a Avarrant of arrest thereon, making the, same returnable before one J. C. McLendon, a notary public and ex officio justice of the peace in said county of Crenshaw. This Avas irregular, but the irregularity could be waived by the defendant, and if not objected to at the hearing before the justice before whom it is made returnable, Avill be considered as AvaiAred. Both Avere officers of the same county, and Avith like jurisdiction as to the subject matter under investigation.

Motion Avas made in the circuit court by the defendant to quash, the proceedings because of this irregularity. Upon the hearing.,of this motion in the circuit court it Avas insisted by the defendant, that he made the same motion in the justice court on the hearing before said McLendon, J. P., and had also filed a plea in abatement before said justice, McLendon, praying' an abatement of the proceedings in that court. This insistence was de*96nied by the State and evidence was heard by the circuit court .pro and con on this question.- - And the court after hearing such evidence overruled the motion. There was no record evidence of such motion and plea having been made .in the justice pourt — -that is, the -transcript from the justice did'not show-it, nor was the original plea or motion, if either was ever put- in writing and filed, offered to show it. The evidence .off ered before the circuit court on this motion -was in palpable conflict, and we see no reason for disturbing the judgment of the court as to the conclusion reached upon the question raised by the motion. •

Upon the-examination of. the prosecutrix as a witness she was asked by the defendant if she had not had sexual intercourse with certain named parties, and which she denied. These named parties were subsequently introduced as witnesses by the defendant, and they each testified that they had had at certain times named by each of them sexual intercourse with the prosecutrix. There upon the State was permitted against.the objection of the defendant to introduce evidence of the good character of the prosecutrix-for truth and veracity. In this the court .was in error.. Sustaining evidence as to the character of: a witness for truth and veracity is only competent where impeaching evidence has been offered. The evidence offered by. the defendant was not for the purpose of impeaching the prosecutrix as a witness, but was strictly defensive matter under the issue involved in the case. Witnesses may be impeached upon evidence of their, general bad character, or by -showing statements made.by them contradictory of those testified to, and in’ the latter instance, a proper predicate as to time and place of such contradictory statements must be laid. The mere contradiction of one witness by another as to any fact testified to, does not authorize the introduction of, sustaining evidence of good character for-Truth and veracity as to either of’such witnesses. ' Theregwas no predicate laid as required under the rule, nor wadgthere any pretense that the testimony, ivas offered for the purpose of impeachment.

The measure of proof in a bastardy proceeding does\ not require .that.the evidence shall satisfy the jury to a \ *97moral certainty, or beyond a reasonable doubt, that the defendant is the father of the bastard child, before they can so find by their verdict, and consequently there Avas no error in giving written charge number 1 requested by the State. — Miller’s Case, 110 Ala. 69; Hunter’s Case, 67 Ala. 81.

Under the authority of Snoio v. Solomon, 91 Ala. 390, written charge No. 2 requested by the State asserts a correct proposition of law, and the giving of this charge ÁAras free from error.

The Avritten charge requested by .the defendant is faulty both on account of being involved, and argumentative, and was properly refused.

For the error pointed out the judgment of the' court beloAv must be reversed and the cause remanded.