Lusk v. State

CourtSupreme Court of Alabama
Citation30 So. 33,129 Ala. 1
PartiesLUSK v. STATE.
Decision Date16 April 1901

30 So. 33

129 Ala. 1


Supreme Court of Alabama

April 16, 1901

Appeal from circuit court, Jackson county; A. H. Alston, Judge.

George W. Lusk was convicted of crime, and appeals. Affirmed.

The evidence for the state tended to show that defendant was guilty as charged. The prosecutrix, as a witness, testified that she had been criminally intimate with the defendant, Lusk, at various times from November, 1898, until April 23, 1899, and that the child was born on December 20, 1899. The evidence for the defendant tended to show that the lewdness of the prosecutrix did not enable her to charge him with the paternity of her child. The other facts of the case relating to the rulings of the trial court reviewed on the present appeal are sufficiently stated in the opinion. Upon the introduction of all the evidence, the defendant requested the court to give to the jury the following written charges, and separately excepted to the court's refusal to give each of them as asked: (3) "The burden is on the state to convince you that the defendant is the father of the child; and if, on considering the whole of the testimony, you are not satisfied of this fact, you should return a verdict for the defendant." (4) "The fact that the defendant had sexual intercourse with the prosecutrix makes no difference if the defendant is not the father of the child."

J. E. Brown and S.W. Tate, for appellant.

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


This is a bastardy proceeding. The state introduced the prosecutrix as a witness, and, she having testified to the material facts charged, rested its case. The defendant, on the cross-examination of the witness, elicited the fact that, covering the time inquired about with reference to Lusk, she had been visited by and associated more or less with other men; and, further, that she had "told the justice of the peace on preliminary trial [of this defendant] that 'I had never kept company with any other young man but the defendant."' On behalf of the defense there was adduced the testimony of several other witnesses going to show that the prosecutrix had "kept company" with other young men that the defendant. All this testimony was received without objection, so that no question of its materiality arises; and, having been treated as, and doubtless made to do the offices of, material testimony on the trial, the principle that a witness cannot be impeached by evidence of...

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5 cases
  • Morehead v. United States Fidelity & Guaranty Co, 33896
    • United States
    • United States State Supreme Court of Mississippi
    • November 27, 1939
    ...of 1930; Bennett v. State, 58 Miss. 556; Hyde v. State, 52 Miss. 665, 670; 38 C. J. 597, 598; Sullivan v. Y. & M. V. R. Co., 85 Miss. 649, 30 So. 33; Davis v. Adams, 96 Miss. 177, 60 So. 568. The fact that the appellees knowingly made a false statement concerning the appellant in order to c......
  • Smith v. State, 346
    • United States
    • Alabama Court of Appeals
    • June 15, 1915
    ...417] proceedings, but that the rule applicable is that which obtains in civil suits. White v. State, 170 Ala. 1, 54 So. 430; Lusk v. State, 129 Ala. 1, 30 So. 33; Dorgan v. State, 72 Ala. 173; Miller v. State, supra; 5 Cyc. 664 (VII, K, 4b); Underhill, Cr.Ev. § 524. Prof. Underhill, in his ......
  • Stockard v. State, 6 Div. 132
    • United States
    • Alabama Court of Criminal Appeals
    • November 20, 1979 the State in rebuttal, was not offered in impeachment of defendant's testimony but in "mere contradiction" thereof. See Lusk v. State, 129 Ala. 1, 30 So. 33 (1900); Bell v. State, 124 Ala. 94, 27 So. 414 (1899); Gamble, McElroy's Alabama Evidence, § 176.01(8) Another assertion of error i......
  • Southern Ry. Co. v. Rosenburg
    • United States
    • Supreme Court of Alabama
    • April 18, 1901
    ...assignment of error is not insisted upon in argument. Moreover, the evidence, without any conflict, made out a prima facie case in favor [30 So. 33.] of the plaintiff, which authorized the giving of the charge as requested. The present action is one ex contractu, and the statute of limitati......
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