Williams v. State , 113 Ala. 58 ( 1896 )

COLEMAN, J.

This is a proceeding in bastardy, instituted by Come Thomas before a justice of the peace. The appellant was bound over to the city court for trial. We have no doubt of the jurisdiction of the city court to try and determine the question involved in proceedings in bastardy, arising within its territorial jurisdiction. Tenn. Mutual B. & L. Asso. v. The State, 99 Ala. 197. The jurisdiction of the city court was fully considered and determined in the ease cited. Nor do we doubt that the court ruled properly in overruling the motion to quash-, because of the proceedings before the justice of the peace, and the bond required by him.-Walker v. The State, 108 Ala. 56; Miller v. The State, 110 Ala. 69. There is nothing in the abstract which indicates that the complaint filed by the solicitor was insufficient. On the trial, the fact was clearly established that the prosecu-trix was living within the territorial jurisdiction of the court, and was not- controverted.

The letter of the defendant to the prosecutrix was competent evidence. The handwriting was proven, and its genuineness admitted by the defendant. It tended to show an affection and intimacy between the parties.

The defendant had the right to inquire of the prosecutrix, if she had not had sexual intercourse with other named parties, giving the time and place, and which were fixed within the period of gestation, she not having been delivered ; and upon her denial, it was competent to prove as a fact the sexual intercourse inquired about. The error in sustaining the object to the question was subsequently cured by permitting the parties, as to whom the inquiry was directed, to testify as to the special occasions .

The charge given by the court, at the request of the defendant, was too favorable to him, and should not have been given. The explanation complained of declared the law correctly. When a charge asserts a correct proposition, under the statute, (Code of 1886, § 2756), it can not be qualified ; but that rule has no application when the charge requested is erroneous, nor does it deprive the court of the power to explain.-Eiland v. State, 52 Ala. 322.

Tbe abstract does not boar out appellant in Ms criticism of the charge of the court contained in the 13 th assignment of error. According to the abstract, no such instruction was given. It is only found in the exception of appellant and in his assignment of error, and not in the charge of the court.

The court erred in giving the following instruction to the jury: “You may take into consideration the fact that Come Thomas came into court to testify as to her pregnancy in this case, in determining whether she was pregnant.” If this charge carried with it no other signification than that the witness made profert of her person before the jury, and that her apparent condition might be considered on the fact of her pregnancy, possibly, the charge would not be objectionable. But the most natural meaning of the charge, and the one probably placed upon it, and the one intended by the court, was that the mere fact of her coming into court, and testifying that she was pregnant, of itself was a fact in evidence, which they should consider ‘ ‘in determining whether she was pregnant.” We can perceive no reason, and wo know of no authority, which sanctions the principle. The instruction is also argumentative, and in a case of this character, coming from the court, it was calculated to unduly impress the jury. For this error the judgment is reversed and the cause remanded.

Reversed and remanded.