69 So. 406 | Ala. Ct. App. | 1915
Subsequent to' this conclusion, the statute (Code 1876, § 4879) was so amended as to* allow the state four, and the defendant six, peremptory challenges in bastardy
In section 32 of the present Jury Law (Acts 1909, Sp. Sess. 305), we find this proviso: “Provided, That in all civil cases tried by jury, the right of challenge and the number of challenges for each party and the right to have a struck jury, shall remain as now provided by law, but in every criminal case, the jury shall be drawn, selected, and impaneled as follows,” etc.
It is perfectly clear from the reading of the act in connection with the quoted proviso- that it was the legislative purpose that the law regulating the right of peremptory challenge should remain as set forth in the Code except as to criminal cases. The defendant demanded a struck jury and was allowed to strike from the list six names and the state allowed to strike six, and he has no ground to- complain that the court refused to allow him to strike more than six.—Code 1907, § 6374; Dorgan v. State, supra.
In view of the nature of the act with which the defendant was charged, and the proceedings against him, the court did not err in allowing the state to offer proof of flight. It had the same tendency to prove the issues in a bastardy proceeding as it would had the defendant been on trial for seduction.
In Miller v. State, supra, the Supreme Court, in passing on the right of counsel in argument to- refer to the fact that the defendant, though competent as a witness in his own behalf, had failed to testify, wherein it was insisted that such comments were an infringement of the statute prohibiting such a course in criminal prosecutions, said: “A proceeding in-bastardy, though penal in its character and quasi criminal, is not a criminal prosecution within the meaning of the statute. The weight of authority holds to the view that the action is a civil proceeding.—2 Am. & Eng. Ency. Law, 144. There is no such statutory provision relative to the refusal of parties to testify in civil cases.' We are of opinion the exception was not well taken.”
And in Dorgan v. State, supra, it was held that the statute regulating the right of peremptory challenge in criminal cáses did not apply to- a bastardy proceeding. And the authorities are uniform that the measure of proof in criminal cases does not apply 'to bastardy
Prof. Underhill, in his work on Criminal Evidence, says: “The current of the authorities .favor the view that the proceeding under the statute by which the father of a bastard is compelled to contribute toward its support is a civil action, though not in the sense of that term as it used in a statute forbidding arrest in civil actions.” — Underhill, Or. Ev. § 523.
“The rules and principles of the law of evidence which are applicable to civil proceedings are also applicable to bastardy proceedings. The defendant may be compelled to testify as the witness for the mother of the child, and in case of the absence of material witnesses their depositions may be availed of as evidence.”—Underhill, Cr. Ev. § 524; Booth v. Hart, 43 Conn. 480; State v. Hickerson, 72 N. C. 421; Richardson v. People, 31 Ill. 170.
In Williams v. State, 117 Ala. 199, 23 South. 42, and State v. Dodd, 9 Ala. App. 65, 64 South. 169, it was ruled that a proceeding in bastardy was not a criminal case and that the rules governing civil suits requiring assignments of error on the record were applicable and essential to the right of review.
In proceedings of a civil nature, it has been repeatedly held that the husband and wife are competent witnesses for or against each other and may testify to any fact which is not within the class designated as privileged communications and tending to violate the sacred confidence of the marital relation.—Robison v. Robison, 44 Ala. 234; Lang v. Waters, Adm’r, 47 Ala. 625; Rowland
Some of the facts testified to by the wife of the defendant were material and not within the class designated as privileged, while other facts testified to were within the class; but the only point raised by the assignment of error, and the only point insisted on in argument, is that the wife was incompetent to testify as a witness to any fact in the case, the assignments of error being as follows: “'(15) The court erred in permitting Mrs. .Wade Smith to testify against her husband, Wade Smith, who was on trial.
“(16) The court erred in overruling the motion of the defendant to exclude from the jury all the testimony of Mrs. Wade Smith, the wife of Wade Smith.”
There is-a vast difference between the competency of a witness to testify in a given case and the right to use the witness to' prove certain facts within the knowledge of the Avitness, however material such facts may be to the issues in the case. There may be no- ground to exclude the witness from testifying in the case, hut there may be sound reasons for not permitting the Avitness to disclose certain facts within the knowledge of the witness as to which, on grounds of public policy and for the good of society, the law deems it wise to close the mouth of the witness, and within this class are facts coming to the knowledge of the husband or wife in the marital relations as a result of their association as husband and wife.—Campbell v. State, 133 Ala. 158, 32 South. 635; Egbert v. Greenwalt, 44 Mich. 245, 6 N. W. 654, 38 Am. Rep. 262; Bell v. Territory, 8 Okl. 75, 56 Pac. 853.
The record shows that all this testimony was given without objection on the part of the defendant, except a motion to exclude the answer of Jim Cox, after he had answered the question, without stating any grounds, and an objection to one question to -Cox, which he did not answer;. and motion to exclude the testimony of Farabee and Snyder on the ground that their testimony
A party cannot sit silent when a question is asked and speculate as to the answer and then put the court in error for overruling motion to exclude it.—W. U. Telegraph Co. v. Bowman, 141 Ala. 175, 37 South. 493; B. R., L. & P. Co. v. Taylor, 152 Ala. 105, 44 South. 580; Lewis v. State, 121 Ala. 1, 25 South. 1017; Davis v. State, 145 Ala. 69, 40 South. 663.
The twenty-eighth assignment of error, embracing, as it does, a mass of testimony offered and received without objection on the part of the defendant, with other testimony of like character, to which the only objection made was a motion to exclude after it was received, is too general to invite consideration and is unavailing to reverse the judgment. The object of an assignment of error is to point but specifically the matter complained of as a basis of error.—Jones v. Adkins, 151 Ala. 316, 44 South. 53; Mobile Co. v. Bromberg, 141 Ala. 258, 37 South. 395; Thompson v. N. C. & St. L. Ry. Co., 160 Ala. 590, 49 South. 340; Driver v. King, 145 Ala. 585, 40 South. 315; S. A. L. Ry. v. Hubbard, 142 Ala. 546, 38 South. 750; Williams v. Coosa Co., 138 Ala. 673, 33 South. 1015; L. & N. R. R. Co. v. Banks, 132 Ala. 471, 31 South. 573.
It is a familiar rule that if parties elect to try their case on immaterial evidence or issues, without objection, they have no ground to complain; and part at least of the evidence referred to in this assignment of error was received without objection, and as to it the appellant cannot complain, and this renders the assignment unavailing.
What Ave have said as to the burden and measure of proof condemns charge 1 refused, to- the defendant.
' We find no error in the record of which appellant can complain, and the judgment of the city court is affirmed.
Affirmed.