Walker v. State , 134 Ala. 86 ( 1901 )

McCLELLAN, C. J.

— The child alleged to have been assaulted and beaten was ten years old. Being offered as a witness for the State, she testified on her voir cliro as follows: “That she went to Sunday school and to church, that she said her prayers and believed in God, and tliat if she told a story about this case, she would be put in jail, and when she died, she would go to the bad man, but that she did not know who would'send her to' the bad man.” That she was of sufficient intelligence apart from religious training to' be admitted to' testify is apparent from the foregoing and her other evidence in the case. Under the rule declared in all our adjudications, the circuit court properly allowed the child to .testify. — Kelly v. State, 75 Ala. 21; Brown v. State, 72 Ala. 191; Carter v. State, 63 Ala. 52; McKelton v. State, 88 Ala. 181.

The name of the child prior to' her adoption by Walker was Lucinda Breeden and she is so named in the indictment. The adoption had occurred only a short time — about one month — before the alleged assault. The child testified that her* name was Breeden, and that she was always called by that name and was never called by the name of Walker. “Several other witnesses who stated that she was as well or better known by the name of Breeden than Walker.” With this evidence in the case the comb’s rulings on objections to- testimony and requests for instructions made by defendant having relation to the name of the child were free from error. Charge 5 refused to' defendant in this connection is abstract, there being no evidence that the child was named, or known by the name of Breeder.

Charge: 2 refused to defendant is incomplete and elliptical.

Charge 13 requested by defendant “has been repeatedly condemned by this court.” — Compton v. State, 110 Ala. 24, 35.

The laAV does not require tlie exclusion of every hypothesis of innocenc, but only every reasonable hypothesis.

We find no error in this record, and the judgment of the circuit court must be affirmed.