Lusk v. State

• Decision Date: 16 April 1901
• Citation: 30 So. 33,129 Ala. 1
• Parties: LUSK v. STATE.
• Court: Alabama Supreme Court

30 So. 33

129 Ala. 1

LUSK v. STATE.

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.

McCLELLAN C.J.

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 contradictory statements as to immaterial matters can have no application in the premises, even if these were absolutely immaterial matters,-which we do not decide. That this evidence of what the prosecutrix testified on the preliminary hearing, and of facts going to show that what she then deposed was untrue, was in the nature of impeachment of her credibility as a witness on the final trial, there can, we think, be no question. Being such, it was clearly competent for the state, in rebuttal, to support her credibility by evidence of her general good character and of her general good character for truth and veracity. The attempt to impeach her supplied the predicate for rebutting character evidence, which was lacking in the case of Bell v. State, 124 Ala. 94, 27 So. 414, and in other cases of that line of authority; and...