Kelly v. State

• Decision Date: 15 May 1902
• Citation: 32 So. 56,133 Ala. 195
• Parties: KELLY v. STATE.
• Court: Alabama Supreme Court

32 So. 56

133 Ala. 195

KELLY v. STATE.

Supreme Court of Alabama

May 15, 1902

Appeal from circuit court, Clarke county.

Willie Kelly was found guilty on a bastardy proceeding, and appeals. Reversed.

This was a bastardy proceeding, in which the appellant, Willie Kelly, was tried and found guilty of being the father of the bastard child of Florence Stephens. On the trial of the cause the evidence for the state showed that Florence Stephens was delivered of a bastard child on July 27, 1900. The state, for the purpose of showing the likeness of the child to the defendant, proposed to offer the child in evidence, so the jury could view it. The defendant objected to the introduction in evidence of the child, and the court overruled the objection, and permitted the child to be introduced in evidence, and the defendant duly excepted to the ruling of the court. Defendant, the child, and the mother are all white persons. There was testimony in behalf of the state to show that during the month of October, 1899 (the month prior to the time the state contended the child was conceived), the defendant associated with Florence Stephens having been frequently in her company; and, to rebut this testimony, the defendant offered to show that during such time she was also seen in company of other men; and he proposed to prove by one Sellers and one Barr that they saw her at Alameda about sundown on the fourth Sunday in October drinking cider with a young man other than defendant; that Alameda is about two miles distant from her home; that she and the young man left Alameda alone, going in the direction of her home; that one of the witnesses drank some of the cider, and it made him drunk; that the road from Alameda to her home leads mostly through the woods. The state objected to this evidence, and moved to exclude it, and the court granted the motion, and the defendant duly excepted.

Lackland & Wilson and Davis & Gunn, for appellant.

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

McCLELLAN C.J.

There is in Paulk v. State, 52 Ala. 427, this dictum "On an issue formed in a bastardy proceeding, it is doubtless competent for the defendant to prove that the child bears no likeness or resemblance to him, or that it resembles some other person who had opportunities of illicit intercourse with the mother." It would necessarily follow that the prosecution, upon such issue, would be entitled to show that the child resembled the defendant, and logically, that in such cases it would be competent to make profert of the child before the jury to show its resemblance, or lack of resemblance, to the putative father. In Linton v. State, 88 Ala. 216, 7 So. 261, the charge was miscegenation of the defendant, Linton, a white woman, with John Blue, a negro; and, of the propriety of allowing the prosecution to prove Blue's race by producing his person before the jury, this court said: "There was no error in allowing the state to make profert of the person of John Blue to the jury, in order that they might determine by inspection whether he was a negro, as charged in the indictment. There had been a severance in the trials of appellant and Blue; and evidence of this character is clearly competent to...