Guy v. State

• Decision Date: 25 November 1924
• Docket Number: 1 Div. 565
• Citation: 20 Ala.App. 374,102 So. 243
• Parties: GUY v. STATE.
• Court: Alabama Court of Appeals

102 So. 243

20 Ala.App. 374

GUY v. STATE.

1 Div. 565

Court of Appeals of Alabama

November 25, 1924

Appeal from Circuit Court, Mobile County; Saffold Berney, Judge.

Sherman Guy was convicted of bastardy, and he appeals. Affirmed.

Outlaw & Kilborn, of Mobile, for appellant.

Harwell G. Davis, Atty. Gen., for the State.

FOSTER J.

The appellant was charged with bastardy, upon complaint made by Minnie McCants. A hearing was had before Hon. Norborne R Clarke, judge of the inferior criminal court of Mobile county, and upon said hearing the appellant was held to the circuit court of Mobile county. In the circuit court the issue was found in favor of the state by a jury, and the judgment required that appellant enter into the statutory bond for the support of the child. Failing to give such bond, appellant was sentenced to perform hard labor for the county of Mobile for one year. From this judgment appellant prosecutes his appeal.

On cross-examination, counsel for defendant asked the prosecuting witness, Minnie McCants: "Have you had any other children?" The solicitor for the state objected to the question. Counsel for defendant thereupon stated to the court that he expected to show by other witnesses that they had had intercourse with her; that she had another bastard child previously as going to the credibility of the witness and also for the purpose of showing that she was a lewd character, and as affecting the question as to whether or not she was a single woman. The court sustained the objection and the defendant reserved an exception to this ruling of the court.

It is always permissible, in bastardy proceedings, to show acts of sexual intercourse with other parties during the period of gestation, for the purpose of showing that another than the defendant may be the father of the child. And acts of sexual intercourse of another than the defendant occurring several years previous to the birth of the child in question may be shown, if it is also shown that his intimacies and opportunities continued until after the child in question was begotten. The fact of prior misconduct of the prosecutrix with another man, and the continuance of his visits to her up to and at the time of the conception of the child in question, would be a material aid in determining the probabilities of misconduct at the latter time, and such facts are admissible in evidence, so that the jury may determine if another than the defendant was the father of the child. Where the state has proven the defendant's association with the prosecutrix about the probable date of conception, it is competent for the defendant to introduce evidence that about the same time prosecutrix associated with another man, on occasions and under circumstances affording opportunity for illicit relations. Allred v. State, 151 Ala. 125, 44 So. 60; Kelly v. State, 133 Ala. 195, 32 So. 56, 91 Am.St.Rep. 25.

But in the instant case the offer was not to show who was probably the father of the first bastard child, and the continuance of illicit relations to the time the child in question was begotten, or that the other man or other men visited her during the time of gestation. Evidence that another man was consorting with prosecutrix at a time not within the period of gestation was immaterial. Allred's Case, supra. Acts of illicit intercourse between prosecutrix and other men must be confined, in evidence, to a time within which the child could have been conceived. Brantley v. State, 11 Ala.App. 144, 65 So. 678. It is not allowable to show unchaste conduct of the prosecutrix with other men, unless it has a bearing on the paternity of the child. 7 Corpus Juris, p. 989, note 86.

Appellant's counsel cite the case of Campbell v. State, 23 Ala. 44, as authority on the proposition that proof of a former bastard child was permissible as going to the credibility of the prosecuting witness. Chief Justice Chilton said in that case that, on cross-examination of a single woman as a witness, proof that she had children was competent as tending to establish the fact of her being a prostitute. It may be inferred from the decision on the point that the fact of a single woman having children was material on the question of her credibility as a witness. No authority is cited by the Chief Justice, and, so far as we have been able to find, this decision stands alone in Alabama in the rule laid down.

In Reeder v. State, 210 Ala. 114, 97 So. 73, Justice Thomas, speaking for the court, says:

"The questions to Mrs. Morgan, sought to be propounded by defendant, as to whether or not she had ever been married, and of the nature of her private relations, or of the parentage of her children, were immaterial."

Mrs. Morgan was a witness for the state, and the questions propounded were for the purpose of going to the credibility of the witness. This case is in direct conflict with the Campbell Case, supra, and the Reeder Case is in line with the later decisions of the Supreme Court, and with the great weight of authority.

If want of chastity is a material inquiry requiring proof, it was sufficiently proven by the declaration of the prosecutrix that she was a single woman and the mother of a bastard child.

Good character of the prosecutrix for virtue and chastity was not a material issue in the case. Underhill, Cr.Ev. § 531; Jones on Ev. § 153. A predicate as to immaterial matter should not be allowed for the purpose of impeaching a witness. Ragland v. State, 125 Ala. 12, 27 So. 983.

In Allred v. State, 151 Ala. 125, 44 So. 60, it was held that evidence of acts of intercourse with other men outside the period of gestation although offered for the purpose of contradicting prosecutrix in the statement that she had never...