Carnley v. State
| Decision Date | 30 June 1909 |
| Parties | CARNLEY v. STATE. |
| Court | Alabama Supreme Court |
Appeal from Geneva County Court; P. N. Hickman, Judge.
Tat Carnley was convicted of abandonment, and he appeals. Reversed and remanded.
W. O Mulkey, for appellant.
Alexander M. Garber, Atty. Gen., for the State.
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 first insisted by appellant that as the warrant in this case was made returnable to the judge of the county court, and not to the court, the court acquired no jurisdiction. This contention cannot be sustained. The affidavit and warrant were as a matter of fact returned to the court, and the trial was had in and by the county court, and not by the judge, as distinguished from the court. Moreover, the warrant provides that the defendant "shall appear at the next term of the county court of Geneva county and from time to time until discharged by law." The rights or the results could not have been different, had the warrant recited that it was returnable to the "county 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 case) 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 that fact is a material issue, as it is in this case. Of course, if the question should arise collaterally, it might be conclusive but not when the paternity is a material issue, and certainly not when, as in this case, it is shown that the child was born before marriage and while the mother was a single woman. The case of Hall v. State, 100 Ala. 86, 14 So. 867 does not deny proof of such facts, but, on the contrary, recognizes the admissibility and relevancy thereof, if it does not so decide. This court, in...
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Steber v. State
...that defendant's motion to quash should have been granted. Though pleas 2 and 5 may not have presented a good defense ( Carnley v. State, 162 Ala. 94, 40 So. 362), the which has been generally sustained in this state in civil cases, that when issue is taken on an immaterial plea, and it is ......
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...law returnable into the court and was in fact so returned. Its departure from correct form was not fatal to its validity. Carnley v. State, 162 Ala. 94, 50 So. 362; v. State, 52 So. 885. Appellant moved the court to quash the warrant, alleging that the same had been issued upon an affidavit......
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