Walker v. State

• Decision Date: 28 June 1902
• Citation: 32 So. 703,134 Ala. 86
• Parties: WALKER v. STATE.
• Court: Alabama Supreme Court

32 So. 703

134 Ala. 86

WALKER v. STATE.

Supreme Court of Alabama

June 28, 1902

Appeal from circuit court, Jackson county; J. A. Bilbro, Judge.

Will F Walker was convicted of assault and battery, and he appeals. Affirmed.

On the trial of the case the state introduced in evidence the child alleged to have been assaulted, who was shown to be 10 years old. Her testimony on her voir dire is set forth in the opinion. The defendant objected to her testifying, the court overruled the objection, and the defendant duly excepted. This witness testified that the defendant whipped her with a leather strap very hard. She testified that her name was Lucinda Breeden, and her father's name was Breeden; that her mother was dead, and that she was adopted by the defendant, Will F. Walker, and it was admitted that she was the adopted child of said Walker, taking his name. The defendant moved to exclude the testimony of the child, upon the ground that the defendant was indicted for an assault on Lucinda Breeden, while the child's name was Lucinda Walker. The court overruled this motion, and the defendant duly excepted. The state introduced several witnesses, who testified that the child assaulted was well and better known by the name Lucinda Breeden than by the name of Lucinda Walker. The defendant, as a witness in his own behalf testified that at the time he is charged with having whipped the child he was in bed, where he had been confined for four weeks; that he did not whip the child, but that his wife whipped her; that the child was his adopted child at the time of the whipping. The testimony of this witness was corroborated by the testimony of several witnesses introduced in his behalf. The defendant introduced the record of the probate court showing that the child was adopted prior to the alleged assault, taking his name, etc. The defendant requested the court to give to the jury, among others, the following written charges: "(6) The court charges the jury that it is an essential indispensable element of the indictment that the name of the child alleged to have been assaulted is as certain as the name of the person charged with the assault." "(3) The court charges the jury that if they believe the evidence, the child's name was at the time of the alleged assault Lucinda Walker, and you should acquit the defendant." "(5) The court charges the jury, if they are not satisfied beyond a reasonable doubt that at the time of the alleged assault she was as well known by the name of Lucinda Breedon as she was by the name of Lucinda Breeder, as she was by the name of Lucinda Breeden, or Lucinda Walker, the jury should acquit the defendant." "(13) The court charges the jury that it is a well-settled rule of the law that if there be two reasonable constructions which can be given to facts proven,--one favorable and the other unfavorable to a party charged with crime,--it is the duty of the jury to give that which is favorable rather than that which is unfavorable to the accused. (14) The humane provision of the law is that upon circumstantial evidence there should not be a conviction unless to a moral certainty it excludes every other hypothesis than that of the guilt of the...