Bell v. State

• Decision Date: 01 February 1900
• Citation: 124 Ala. 94,27 So. 414
• Parties: BELL v. STATE.
• Court: Alabama Supreme Court

27 So. 414

124 Ala. 94

BELL v. STATE.

Supreme Court of Alabama

February 1, 1900

Appeal from circuit court, Crenshaw county; D. M. Powell, Special Judge.

George H. Bell was convicted of bastardy, and he appeals. Reversed.

For former opinion, see 27 So. 271.

This is a cause wherein this appellant was tried and convicted for the offense of bastardy in the circuit court of Crenshaw county, Ala., at the fall term, 1899. The facts of the case pertaining to the rulings of the trial court which are reviewed on the present appeal are sufficiently stated in the opinion. Upon the introduction of all the evidence the court at the request of the state, gave to the jury the following written charges: "(1) The court charges the jury that the state is not required to prove the defendant's guilt beyond a reasonable doubt and to a moral certainty, but only a reasonable certainty. (2) The court charges the jury that Joanna Blackman was merely the informer, and she recovers nothing, but that, if the defendant is found to be the real father of the child, the money required to be paid by him must go to the maintenance and education of the offspring." The defendant separately excepted to the court's giving each of these charges, and also duly excepted to the court's refusal to give the following charge requested by him: "The court charges the jury, if from the evidence you believe the defendant has a good character, you may look to such facts and circumstances whether testimony is sufficient to reasonably satisfy you that the defendant is the father of the child."

C. E Hamilton and J. O. Sentell, for appellant.

Chas G. Brown, Atty. Gen., for the State.

DOWDELL J.

That a notary public, with ex officio powers of a justice of the peace, has the same jurisdiction in bastardy proceedings under the statute as a justice of the peace, cannot now be questioned. Douglass v. State, 117 Ala. 186, 23 So. 142, and authorities there cited. The affidavit in the present case was made before H. D. Brunson, a justice of the peace, who issued a warrant 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 was 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, will be considered as waived. Both were officers of the same county, and with like jurisdiction as to the subject-matter under investigation.

Motion was 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 was insisted by the defendant that he had 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 denied by the state, and evidence was heard by the circuit court pro and con on this question, and the court, after hearing such...