Miller v. State , 110 Ala. 69 ( 1895 )

COLEMAN, J.

This is a proceeding for bastardy, prosecuted by Leolar Lewis, in the name of the State of Alabama. In such cases it is not necessary that a minor should appear by next friend.—Hanna v. State, 60 Ala. 100.

On the 5th of January, 1894, the defendant was bound over by a justice of the peace, to appear before the circuit court to answer the charge. The first term of the circuit court at which the defendant was bound to appear began the following April. At that term the case was not docketed, and no order made specially in regard to the case. At the close of the term, the court entered a general order of continuance of business not otherwise disposed of. At the fall term, (October), the cause against the defendant was placed upon the trial docket. Thereupon the defendant moved a dismissal of the cause upon the ground, that there had been a discontinuance. The effect of a discontinuance applies alike to criminal and civil actions and a chasm, that would operate a discontinuance in one, will operate a discontinuance in the other. It was held at an early day, that the mere neglect of the clerk to docket a cause, did not discontinue it, (Wiswall v. Glidden, 4 Ala. 357), and in the case of Harrall v. The State, 26 Ala. 58, Rice, J., delivering the opinion, held that the “mere neglect of ministerial duty of a ministerial officer” did not work a discontinuance of a prosecution ; and in Drinkard’s Case, 20 Ala. 9, Dargan, C. J., declared that “the defendant ought not to be allowed to take advantage of the omissions of the clerk to perform his duty,” he being a mere ministerial officer in the performance of such duty ; and in Doe ex dem Brown v. Clements, 24 Ala. 354, the rule in 4th Ala. was reaffirmed, ChiltoN, J., declaring “that the failure of the clerks to do their duty in not placing causes on the docket shall work no prejudices to the parties”, and in the case of Forester v. Forrester, 39 Ala. 323, Walker, C. J., uses the following language : “No mere neglect of the court to docket the cause and call it for trial, or mere omission of counsel to cause it to be docketed and called for trial, can under our decisions operate a discontinuance. But it would be otherwise, if the case had, by the active agency of the party or her counsel, been taken from the docket.”—Ex Parte Holton, 69 Ala. 164. See also 1 Tidd. Prac. 679; 2 Arch. Prac. 234; 5 Amer. & Eng. Encyc. of Law, 674, 675, notes.

It does not appear that either the court or the solicitor had any notice, that the defendant had been bound over to court, and the omission to place the case on docket, was purely a neglect on the part of the clerk. Under the foregoing authorities we hold that the court did not err, in overruling the motion to dismiss the case. Nothing herein said is intended to modify the rule as to prisoners in jail, a list of whom the law requires shall be certified to the presiding judge .on the first day of each term.—Cr. Code, § 4552; Ex parte Stearnes, 104 Ala. 93.

The court did not err in allowing the solicitor to amend the complaint or to file an amended complaint.-2 Amer. & Eng. Encyc. of Law, pp. 144, 145. The complaint was not objectionable wherein it followed the statute, in averring that the prosecutrix was “pregnant with or delivered of a bastard child.” — Cr. Code, § 4842. Striking out the words “or delivered of” in no' way prejudiced the defendant.

The State was allowed to prove contents of a letter, written by defendant to prosecutrix, in which he advised her how to procure an abortion, but which letter had been destroyed by the prosecutrix. The objection is based upon the principle, that a person who destroys written evidence, ought not to be permitted to avail themselves of secondary evidence. The fact that she destroyed the letter should be considered by the jury in determining the credibility of the witness, but does not render such evidence incompetent. She testifies that he requested her to destroy it, and- it may be that at that time, the mother may have had the intention to destroy the evidence of her condition. We think the evidence was competent to go to the jury.

The complaint spelled the name of prosecutrix as Leola, and the evidence showed it was spelled Leolar. There was no such variance as to exclude evidence that Leolar was the person pregnant. Idem sonans applied here. Nor was there error in admitting evidence that prosecu-trix before the trial was delivered of a child, although the complaint, after it was amended, averred pregnancy. At the time of the beginning of the prosecution she was pregnant as charged. Nor did the court err in excluding evidence that prosecutrix at one time was seen to associate with another person, who had previously given birth to a bastard- child. Such testimony was wholly irrelevant, and immaterial. Nor was there error in admitting the evidence of the witness Tuck, that on one. occasion he saw the defendant and prosecutrix alone together. It was a mere circumstance it was true, but was admissible for what it was worth.

When the officer arrested the defendant, he had in his possession two warrants, one charging him with bastardy, and the other with the criminal offense of seduction. The admissions of the defendant were clearly competent against him.

■ During the argument, the solicitor referred to the fact, that the defendant, though competent in his own behalf, had refused to testify. The statute declares, that in all criminal prosecutions the defendant at his own request may be a competent witness, and his failure to testify shall not be the subject of comment by counsel. Or. Code, § 4l73. 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 yiew that the action is a civil proceeding. — 2 Am. & Eng. Encyc. of 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.

We have considered all the asssignments of error, except those which relate to instructions refused by the court to the defendant. These number twenty-five, over fifty having been requested.

It is the settled law in this State, that a court is not in error for refusing charges which are mere repetitions of charges given, or where they are so near alike, that there is not a shade of difference in their meaning and legal effect.—Smith v. State, 92 Ala. 30; L. & N. R. R. Co. v. Hurt, 101 Ala. 34; Murphy v. State, 18 So. Rep. 557. The charges given by the court, which are set out in the abstract, are clear and full and seem to cover every phase of the case of the defendant, and in some instances are more favorable to him than he had a right to demand. Charge number 5 given is of this latter character. Clearly number 7 requested was properly refused. Compare charges 13, 24, 26 requested and refused with charges 3 and 7 given by the court, and we are unable to perceive how the defendant was inj ured by the refusal of the court to give the former. Compare charge 6 requested and refused with number 9 given, and we find the same result, and so with other refused charges. Charge number 1 refused was misleading in that it was calculated to impress the jury with the conviction that the burden was on the State, not only to show that the defendant was the father of the child, but that the State had the further burden to introduce in addition thereto other affirmative evidence that no one else was the father. But if the charge is not subject to the criticism, then the defendant got the benefit of this charge and also of charge number 2 refused, under charge 8 given by the court. This vice is in other charges refused. Charge number 11, refused and insisted upon, is erroneous in this, that it takes from the jury the consideration of all other evidence in the case, in determining the guilt of the defendant, except that of the pros-ecutrix. In this respect the charge is quite different from that held to be good in the case of Elmore v. State, 92 Ala. 51. Charge 12 requested invades the province of the jury in declaring that the defendant was not called upon to explain the suspicious circumstances against him. A jury might think otherwise. But this charge is argumentative, and for that reason objectionable. Charge 22, refused, is somewhat involved. We do not clearlyunderstand what is meant by ‘ ‘ some means, or by certain other acts,” when taken in connection with the remainder of the charge. Certainly "no means or other acts” than sexual intercourse could determine that the defendant was the father of the child. The proof required in this charge is too high. It is not necessary that the jury should be satisfied to a moral certainty. Reasonable certainty is sufficient. Charge 39 is objec-’ tionable in that it exacts too high a measure of proof. The jury are not required to be “conclusively satisfied.”

Charge 44 was properly refused for several reasons. We will notice one. In weighing the credibility of the witness, the jury are restricted to “her testimony, and all the evidence tending to contradict her,” thereby excluding in this connection, the evidence which tended to corroborate her.

Charge 51 requested was properly refused. The charge assumes that the. witness “is shown to be unworthy,” instead of predicating the conclusion upon the finding of the jury to that effect. We find no evidence in this case, to justify such an assumption by the court. It is safer always to leave the weight to be given to the testimony of a witness with the jury.

We have considered all the questions raised in this case, either in detail or by the statement of general principles. It is needless to add that counsel for appellant have left nothing undone or unsaid, which -the necessities of their client’s extremity demanded; but after a most careful consideration of all the assignments of error, we have not discovered any reversible error. The judgment must be affirmed.

Affirmed.