Lusk v. State

129 Ala. 1 | Ala. | 1900

McOLELLAN, O. J.

This is a bastardy proceeding. The State introduced the prosecutrix as a witness, and, she having testified to the material facts charged, rested its case. The defendant on the cross-examination of this witness elicited the fact that, covering the time inquired about with reference to Lusk, she had been visited by and associated more or less with other men, 'and further that she had “told the justice of the peace on preliminary trial [of this defendant] that I had never kept company with any other young man but the defendant.” On behalf of the defense there was adduced the testimony nf several other witnesses going to show that the prosecutrix had “kept company” with other young men than- the defendant. All this testimony was received without objection, so that no question of its materiality arises: and having been treated and doubtless made to do the offices of material testimony on the tidal, the principle that a witness cannot be impeached by evidence of contradictory statements as to immaterial matters can have no application in -the premises, even if these were, absolutely immaterial matters, which we do not decide. That this evidence of what the prosecu-trix testified on the preliminary hearing and of facts going to show that what she then deposed was untrue was in the nature of impeachment of her credibility as a witness on the final trial, there can, we think, be no question. Being such, it was clearly competent for the State in rebuttal to support her credibility by evidence of her general good character and of her general good character for truth and veracity. The attempt to impeach her supplied the predicate for rebutting character evidence which was lacking in the case of Boll v. State, 124 Ala. 94, and in other cases of that line of authority; and the evidence was properly admitted on the principles recognized-in those cases.

At the request of the State the count gave the following charge: “If the jury reasonably believe the weight of the evidence is on the side of the State, and that Geo. W. Lusk, the defendant, is (the father of the child, they should find that the defendant is the father of the child.” This is a civil case, in which a reasonable belief that the weight — preponderance—of the evidence is on the side of the State does not require nor necessarily justify a conviction. But this feature of the instruction is qualified by the succeeding clause directing a conviction only in case the jury shall further “reasonably believe” that the. defendant is the father of the child. Bo that taken altogether the charge means that the jury must convict if they are impressed that the preponderance of the evidence in favor of the Btate is sufficiently great to cause them to reasonably believe that the defendant is the father of the child. Thus construed, the charge is go-od if reasonable belief on the part of the jury that the defendant is the father of the child amounts to that degree of conviction or satisfaction which would exist in the minds of the jurors as the basis for a verdict in a civil case. The rule in this connection has over and over again been declared by this court to he that the jury should be “reasonably convinced” or “reasonably satisfied” of the facts upon which the verdict is rested. We have found no ease passing upon a charge which ‘substitutes- the expression “reasonable belief.” But there have been very many cases approving charges which declared that if the jury “believed” so and so their verdict should be thus and so; and it is scarcely conceivable tliait such charges could have been rendered vicious by requiring that the jury should reasonably believe the facts necessary to a verdict. But, to the contrary it has been several times declared by this court that a rational belief on the part of the jury was the equivalent of that “reasonable conviction” .and “reasonable satisfaction” which upon all the authorities justify and require verdicts, and, of course, a charge that the jury should find for a given ¿fide if they “reasonably believe” the facts necessary to such verdict is essentially the same as an instruction to so find if they have a “rational belief” of such facts. Rowe v. Baber, 93 Ala. 422; Lehman Bros. v. McQueen, 65 Ala. 572; May's Admr. v. Williams, 27 Ala. 267, 273; McWilliams v. Phillips, 71 Ala. 81. Upon these considerations and authorities we hold there was no error in giving this charge.

The jury need not be absolutely satisfied that the defendant. is the father of the child; and hence charge 3 repuested by defendant would have exacted too high a degree of conviction and was properly refused.

Charge 2 was properly refused to the defendant. The period of gestation is not an absolutely fixed period as this request for instruction assumes.

Charge 4 asked by defendant is a mere argument; ‘and if it were not, we cannot conceive how the defendant was injured by its refusal, asserting, as it did, av fact recognized in the pleadings, confessed by everybody and already stated in the charge of the court.

Affirmed.