Dean v. State

• Decision Date: 09 June 1890
• Citation: 8 So. 38,89 Ala. 46
• Parties: DEAN v. STATE.
• Court: Alabama Supreme Court

8 So. 38

89 Ala. 46

DEAN v. STATE.

Supreme Court of Alabama

June 9, 1890

Appeal from city court of Montgomery.

Defendant was indicted for, and convicted of, an assault and battery on a child six years old. It appeared that the child's father had deserted his family, and that defendant, who was living with the family, was authorized by the child's mother to punish and correct it. The testimony of one W. D Cheatham, a policeman, who saw and examined the child a few hours after the whipping, as to whether the child was permanently injured, was excluded by the court on the ground that the witness was not an expert. In answer to a showing for a continuance by defendant, it was admitted that the child's mother, if present, would give certain testimony. The defendant introduced a witness who testified as to the evidence given by the mother of the child on a former trial of the defendant for the same offense, before the recorder's court of the city of Montgomery; and the court thereupon required him, on motion of the solicitor for the state, to elect whether he would retain the admission as to the testimony of said witness contained in the showing for a continuance, or his proof as to her testimony before the recorder. The court charged the jury as follows: "If one standing in loco parentis inflicts corporal punishment on a child, greatly excessive in its severity, all the circumstances considered, he commits an unlawful act whether the injury be permanent or temporary. Malice is not a constituent element of this offense any more than in other assaults and batteries; neither is it necessary for the state to prove that the punishment was inflicted with a malicious purpose, as contended by the defense. If malice is to be made the criterion of this offense, it would, in a great measure withdraw from children the protection of the law. It is enough that the punishment was inflicted, and was, under all the circumstances, unreasonably and immoderately severe; and whether it was so must, in each instance, in the nature of things, be left to the enlightened consideration of the jury."

Sayre & Pearson, for appellant.

W. L. Martin, Atty. Gen., for the State.

SOMERVILLE J.

The law of this case is fully settled by the principles declared in Boyd v. State, 88 Ala. 169, 7 South. Rep. 268. We there held that one standing in loco parentis-exercising the parent's delegated authority-may administer reasonable...