40 So. 362 | Ala. | 1909
The defendant was charged and convicted of vagrancy by abandoning his wife and child, as declared and defined by section 7843 of the Code of 1907. The prosecution was instituted by affidavit and warrant made returnable to the “judge of the county court of Geneva county.” The local acts for that county (Loc. Acts 1903, p. 40) created the Geneva county court, conferring criminal jurisdiction on the court to try misdemeanors, and provided that prosecutions might be had in such court by the transfer of indictments from the circuit court, or by affidavit and warrant made returnable to that court.
It is unnecessary to decide in this case whether a man must have both a wife and child in order to be guilty, under the statute (Code 1907, § 7843), of abandoning either. The defendant in this case was charged conjunctively of abandoning both, and, of course, the proof must correspond with the charge. The offense must be proven as alleged. The defendant was also charged with abandoning “his” wife and child, not those of some other person; and, of course, this allegation must be proven. Proof of the marriage, together with that of the paternity of the child alleged to have been abandoned, was, therefore, both proper and necessary. The undisputed testimony showed the marriage, and the birth of the child before the marriage; and the court did not err in allowing the wife (she being a competent witness against the husband in this particular ca.se) to testify that her husband, the defendant, was the father of the child.
For the same reason the court erred in declining to allow the defendant to deny or disprove that he was the father of the child. The fact that it was born out of wedlock is not conclusive proof of the paternity, when
The defendant should have been allowed to prove, however, by the witness Carnley, that the witness had had sexual intercourse with defendant’s wife within the period of gestation as to the child, the paternity of which was in question. It is undenied that the husband and wife had sexual intercourse with each other before their marriage, arid that bastardy proceedings were pending against the defendant, as to the child in question, when the marriage took place. The wife claimed, and was allowed to testify on this trial, that the defendant was the father of the child, and was the only person who had ever had sexual intercourse with her. If the defendant was the father of the child, he did right in condoning the wrong by marrying the woman and thus legitimatizing the bastard; but, if he was not the
The statute does not make it a crime to abandon the wife or child on all occasions, but makes it a crime only when he abandons them “without just cause.” Of course, proof of the paternity of the child or of the infidelity of the wife should not be made by mere rumors, suspicions, or hearsay evidence; but a part of the evidence offered by the defendant was not hearsay. It was direct. He offered to prove by a witness that such witness had had sexual intercourse with the wife of the defendant during the period of gestation of the child as to which the paternity was in question. This was competent, and it was reversible error to decline to allow it.
For the error noted, the judgment of conviction must be set aside, and the cause remanded.
Reversed and remanded.