Wester v. State

• Decision Date: 01 February 1905
• Citation: 38 So. 1010,142 Ala. 56
• Parties: WESTER v. STATE.
• Court: Alabama Supreme Court

38 So. 1010

142 Ala. 56

WESTER v. STATE.

Supreme Court of Alabama

February 1, 1905

Appeal from City Court of Gadsden; John H. Disque, Judge.

Tom Wester was convicted of abandoning his family and leaving them in danger of becoming a burden to the public, and appeals. Affirmed.

The state introduced Vandy Wester, the wife of the defendant. The defendant objected to the examination of his wife as a witness, upon the ground of incompetency. The court overruled the objection, and the defendant duly excepted. The witness testified that she was married to the defendant on July 21 1901; that a baby was born to them on March 31, 1902; and that on April 20, 1902, the defendant carried her and her child to her father's and abandoned them, and had contributed nothing to her support or the support of her child. Jasper Roan, a witness for the state, testified that he had known the defendant's wife for eight or nine years; that during a part of that time he lived in the same community with her, and for a period of three years visited her; that during the last four or five years he had known very little of the defendant's wife. Whereupon the defendant asked the witness the following question: "Did you, during the time you visited her, take any liberties with her person?" The state objected to this question. The court sustained the objection, and the defendant duly excepted. A similar question was asked Luther Jolly, a witness for the defendant. The same objections and rulings were made to this question. Thereupon the court stated to the defendant's attorney, "You may ask the witness if he ever had adulterous intercourse with Vandy Wester." This question was asked, and the witness answered, "No."

Lee Lee & Lee, for appellant.

SIMPSON J.

There was no error in allowing the wife of the defendant to testify in this case. Acts 1903, p. 32. This act is not an ex post facto law, within the meaning of the constitutional provision. "A statute which simply enlarges the class of persons who may be competent to testify is not ex post facto in its application to offenses previously committed." Hopt v. People of Utah, 110 U.S. 575, 4 S.Ct. 202 28 L.Ed. 262; Mrous v. State, 31 Tex. Cr. R. 597, 21 S.W. 764, 37 Am. St. Rep. 834.

The questions asked the witness Jasper Roan and Luther Jolly were leading, and, in addition, while the testimony sought to be elicited might possibly have been competent in connection with other...