Smith v. State

• Decision Date: 15 June 1915
• Docket Number: 346
• Citation: 13 Ala.App. 411,69 So. 406
• Parties: SMITH v. STATE.
• Court: Alabama Court of Appeals

69 So. 406

13 Ala.App. 411

SMITH v. STATE.

No. 346

Court of Appeals of Alabama

June 15, 1915

Rehearing Denied June 30, 1915

Appeal from City Court of Gadsden; James A. Bilbro, Judge.

Wade Smith was convicted of bastardy, and he appeals. Affirmed

The following charges were refused the defendant:

(2) The fact that Wade Smith went to Georgia is no evidence of guilt.

(3) You cannot consider any evidence of flight in this case.

(4) If during the time in which the child could be conceived the woman Rena Smith had sexual intercourse with other men than defendant, then she cannot know who is the real father of the child.

Roper &amp Stephens and J.M. Miller, all of Gadsden, for appellant.

W.L Martin, Atty. Gen., and J.P. Mudd, Asst. Atty. Gen., for the State.

BROWN J.

The complaint filed by the solicitor in the circuit court follows the statute in averring that the prosecutrix was "pregnant with or delivered of a bastard child in Etowah county, and the state avers that Wade Smith is the real father of said child," and the demurrers interposed were properly overruled. Code, § 6364; Miller v. State, 110 Ala. 85, 20 So. 392; Brantley v State, 11 Ala.App. 147, 65 So. 678.

In the absence of statutory provisions prescribing the number of peremptory challenges in proceedings of this character, our Supreme Court has held that the statute regulating challenges in criminal cases did not apply. Dorgan v. State, 72 Ala. 173. The court in that case said:

"In State v. Hunter, 67 Ala. 81, we pronounced the sounder and better view to be that such [bastardy] proceeding was sui generis, partaking of the nature of both a criminal prosecution and of a civil suit--or, in other words, that it was neither a civil suit, nor a criminal prosecution, but rather of a quasi criminal character. In this view of the matter, the court did not err in refusing to allow the appellant as many as six peremptory challenges, which is the number prescribed by section 4879 of the Code in the trial of misdemeanors. He could not

complain that he was restricted to only four such challenges the number allowed in the trial of civil cases. Code, § 3016. At common law, peremptory challenges were never allowed in civil suits, but only in criminal cases punishable capitally. *** No express provision seems to be made by statute touching this matter in bastardy cases--a clear instance of casus omissus, unless it can be supplemented by adopting the rule applicable to civil cases, upon principles of analogy."

Subsequent to this enunciation, the statute (Code 1876, § 4879) was so amended as to allow the state four, and the defendant six, peremptory challenges in bastardy proceedings. This provision was brought forward and codified into the subsequent Codes, and appears in the present Code, in chapter 171 dealing with bastardy proceedings, in these words:

"On a trial of the issue before a jury, each party has the right to challenge six jurors peremptorily." Code 1907, § 6374.

In section 32 of the present Jury Law (Acts 1909, Sp.Sess., 305), we find this proviso:

"Provided, That in all civil cases tried by jury, the right of challenge and the number of challenges for each party and the right to have a struck jury, shall remain as now provided by law, but in every criminal case, the jury shall be drawn, selected, and impaneled as follows," etc.

It is perfectly clear from the reading of the act in connection with the quoted proviso that it was the legislative purpose that the law regulating the right of peremptory challenge should remain as set forth in the Code except as to criminal cases. The defendant demanded a struck jury and was allowed to strike from the list six names and the state allowed to strike six, and he has no ground to complain that the court refused to allow him to strike more than six. Code 1907, § 6374; Dorgan v. State, supra.

Though the burden and measure of proof is different, the same rules govern as to the admissibility of evidence in civil suits and criminal prosecutions, and the test of relevancy is the same; that is, whether the testimony offered conduces to the proof of a pertinent hypothesis, which if sustained will influence the issue. Whitaker v. State, 106 Ala. 30, 17 So. 456; Curtis v. State, 118 Ala. 126, 24 So. 111; McCormack v. State, 102 Ala. 161, 15 So. 438; Mattison v. State, 55 Ala. 225; 1 Wharton, Ev. § 20; Interstate Commerce Com. v. Baird, 194 U.S. 25, 44, 24 Sup.Ct. 563, 48 L.Ed. 860. Jones on Evidence, § 138, states the rule thus: "Where there is such logical connection between the fact offered as evidence and the issuable fact that proof of the former tends to make the latter more probable or improbable, the testimony proposed is relevant, if not too remote. *** It is enough if these may tend in the slightest degree to elucidate the inquiry or to assist, though remotely, to a determination probably founded on truth. *** When there is a question whether any act was done by any person, the following facts are deemed to be relevant, that is to say: *** Any subsequent conduct of such person apparently influenced by the doing of the act, and any act done in consequence of it or by the authority of that person. *** And so it is relevant to prove the demeanor of a party accused of a crime or tort; his flight or concealment, and his falsehood," etc.

In view of the nature of the act with which the defendant was charged, and the proceedings against him, the court did not err in allowing the state to offer proof of flight. It had the same tendency to prove the issues in a bastardy proceeding as it would had the defendant been on trial for seduction.

The same principle justifies the ruling of the court in admitting the testimony tending to show that the defendant attempted to aid in procuring an abortion. Miller v. State, supra.

On like principles, the evidence showing the conduct of the defendant towards the prosecutrix during the time of the alleged relation between them, and the condition of the defendant's wife, and defendant's conduct immediately following the discovery of the pregnancy of the prosecutrix, was admissible. Jones on Ev. §§ 138-144; Miller v. State, supra.

The undisputed evidence is that the child was born on the 21st of October, so it is clear that the child could not have been begotten in the summer of 1913. Acts of sexual intercourse of the prosecutrix with other men, or testimony tending to show such, was not admissible unless they occurred within the period during which the child might have been conceived. Williams v. State, 113 Ala. 58, 21 So. 463; 5 Cyc. 661 (VII, K, 3c); Underhill, Cr.Ev. § 532. The court on this theory properly excluded the statement of the witness Porter tending to show that the prosecutrix met Rutherford at the Gulf State Steel Company's storage yards.

The rule of exclusion that renders the wife incompetent as a witness in a criminal prosecution, with few exceptions, cannot be applied in this case.

In Miller v. State, supra, the Supreme Court, in passing on the right of counsel in argument to refer to the fact that the defendant, though competent as a witness in his own behalf, had failed to testify, wherein it was insisted that such comments were an infringement of the statute prohibiting such a course in criminal prosecutions, said:

"A proceeding in bastardy, though penal in its character and quasi criminal, is not a criminal prosecution within the meaning of the statute. The weight of authority holds to the view that the action is a civil proceeding. 2 Am. & Eng.Ency.Law, 144. There is no such statutory provision relative to the refusal of parties to testify in civil cases. We are of opinion the exception was not well taken."

And in Dorgan v. State, supra, it was held that the statute regulating the right of peremptory challenge in criminal cases did not apply to a bastardy proceeding. And the authorities are uniform that the measure of proof in criminal cases does not apply to bastardy 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 work on Criminal Evidence, says:

"The current of the authorities favor the view that the proceeding under the statute by which the father of a bastard is compelled to contribute toward its support is a civil action, though not in the sense of that term as it used in a statute forbidding arrest in civil actions." Underhill, Cr.Ev. § 523.

"The rules and principles of the law of evidence which are applicable to civil proceedings are also applicable to bastardy proceedings. The defendant may be compelled to testify as the witness for the mother of the child, and in case of the absence of material witnesses their depositions may be availed of as evidence." Underhill, Cr.Ev. § 524; Booth v. Hart, 43 Conn. 480; State v. Hickerson, 72 N.C. 421; Richardson v. People, 31 Ill. 170.

In Williams v. State, 117 Ala. 199, 23 So. 42, and State v. Dodd, 9 Ala.App. 65, 64 So. 169, it was ruled that a proceeding in bastardy was not a criminal case and that the rules governing civil suits requiring assignments of error on the record were applicable and essential to the right of review.

In proceedings of a civil nature, it has been repeatedly held that the husband and wife are competent witnesses for or against each other and may testify to any fact which is not within the class designated as privileged communications and tending to violate the sacred confidence of the marital relation. Robison v. Robison, 44 Ala. 234; Lang v. Waters, Adm'r, 47 Ala. 625; Rowland v. Plummer, 50 Ala. 193; Sumner v Cook, 51 Ala. 521; Chapman v....