Whatley v. State , 144 Ala. 68 ( 1906 )

ANDERSON, J.

The supernumerary judge, Hon. A. H. Alston, while holding the regular term of the Walker circuit court, made an order during said term for holding an adjourned term of said court for said county, at which said adjourned term this defendant was tried and convicted, and which was presided over by the said Alston. The questions presented for our consideration are: First. Did the supernumerary judge have the authority to order an adjourned term? Second. Did he have authority to hold said term, even if it was properly ordered? Acts 1898, p. 236, creating the office of supernumerary judge and defining his duties and authority, expressly provides that he can hold a regular term when the regular judge fails to attend. Section 917 of the Code of 1896 authorizes the presiding judge during a regular term to adjourn the court for certain purposes until some future day to be designated by the judge. Section 1, p. 236, of the Acts of 1898, gives the supernumerary judge the right to exercise all the powers of a, circuit judge. It therefore stands to reason that the supernumerary judge could do and perform all acts at a regular term of the court that could have been performed by the regular judge. If, therefore, the supernumerary judge could hold a regular term, he could also hold what is termed an adjourned term, which is bue the continuation or prolongation of a regular term. — Van Dyke v. State, 22 Ala. 57; Hundley v. Yonge, 69 Ala. 89; Keith v. State, 91 Ala. 2, 8 South. 353, 19 L. R. A. 430; Peel v. State (Ala.) 39 South. 251.

Counsel for appellant insists that the act creating the office of supernumerary judge is unconstitution by rea.son of sections 3, 4, 5, 6, and 7 being therein contained. If their contention be correct, which we-need not decide, sections 1 and 2 of the act could stand, and which are sufficiently full and clear to create the office of supernumerary judge and to confer the powers and jurisdiction exercised in the case at bar.

The juror Gibson was properly excused upon motion of the state. If he would not convict upon circumstantial evidence, that was a good cause of challenge. — Code, 3896, § 5018.

There was no eiwor in overruling defendant’s objection to the question propounded to the prosecutrix: “State whether or not he was making love to you all the time.” It was relevant and material and competent evidence, hnd no objection was made to the form of the question. It was proper to permit the State to show how long the defendant “kept company with the witness.” He was charged with having seduced her upon a promise of marriage, and their relationship and conduct toward each other was a proper element for the consideration of the jury.

There was no error in refusing to exclude1 the testimony as to' when the child was born, as its birth .was- unquestionably the result of sexual intercourse and may have corroborated the mother as to the time of the intercourse with the defendant.

It was competent to permit the witness to testify as to the conversation she had with, the defendant in reference to his marriage and the certificate of divorce. The State relied upon a promise of marriage as the inducement to the witness to yield her person to the defendant. If he was at the time a married man, and she knew it, this fact, unless explained, would he unfavorable to the State, and it had the right to show that he- was- taking-steps or promising to take steps to put himself in position to comply with his promise to- marry the prosecutrix.

There was no error in permitting the State to prove what defendant said to Beverly Earnest as to promises to marry the prosecutrix and how he had treated her. They were inculpatory admissions or declarations, and it does not appear that they were involuntary. While, to authorize this kind of declarations as evidence against a party in a criminal prosecution, it is the duty of the trial court to ascertain that they were freely and voluntarily made, still, on appeal, it will be presumed that the trial court properly performed this duty before they were admitted in evidence, unless the record affirmatively shows that the court did not do so. — Price v. State, 117 Ala. 113, 23 South. 691; Gilmore v. State, 126 Ala. 20, 28 South. 595. The letters written by the defendant to-the prosecutrix were properly admitted. .They were admissions by him of a criminating character and were evidently voluntary, and no point was made as to the genuineness of the letters. — Bracken v. State, 111 Ala. 68, 20 South. 636, 56 Am. St. Rep. 23.

. The certificate of Mrs. Rogers, of the Massey Business College, was but the ex parte statement of a person in Houston, Tex., and was in no sense legal and competent. and we cannot hold that its introduction was inoccuous, though limited for a certain purpose.

The action of the trial court- will not be reversed for sustaining the State’s objection to questions asked the defendant upon redirect examination, as they sought nothing in rebuttal of what was brought out on the cross-examination.

The trial court erred in sustaining the objection to questions propounded by the defendant to the witness Handley, as it had a bearing on the age of the prosecutrix. She had testified to her age, and the defendant had the right to show that she was older, and her age was a proper question to be considered by the jury, along with the other evidence, in determining whether the elements constituting the charge existed or not. The promises or artifices made or used by the defendant must have induced her to yield, and it might be that a promise made to a young girl would be a sufficient inducement, and yet might not'be deemed by a jury to have been believed or relied upon by a woman of mature age.

Without determining whether charge 16 was good or bad, if good, its refusal was not reversible error, as the principle asserted therein was fully embodied ln*otlier charges given at the request of the defendant. Charge 33 was properly refused. It did not state the elements of the offense, but left it to the jury to determine what-elements constituted the offense. — Mann v. State, 134 Ala. 1, 32 South. 704. Charges 35 and 36 were properly refused, as they were attempted as mere answers to- the argument of the solicitor, if not otherwise bad. — White v. State, 133 Ala. 122, 32 South. 139. The other charges requested by the defendant, if not otherwise bad, were either argumentative or singled out and hypothesized certain parts of the evidence, and it is not reversible error to refuse such charges.

There was no reversible error in giving charge 1 at the request of the State. While the woman’s age was- a circumstance that could be considered by the- jury along with the other evidence in the case, her age was not an issue in the case, and the question of age could not warrant of itself an acquittal, as the law does not prescribe any age for a female in a case of this character. The charge singles out a certain fact, and, while the refusal of such charge is not a reversible error, neither is it reversible error to give such a charge. Charge 2, given at the request of the State, asserts the law correctly, and was properly given. The third charge, given at the request of the State, was, if bad, favorable to the defendant. It may have misled the- jury to believe that a reasonable doubt could exist because of their ability to assign any reason for same, be it whimsical or unsubstantial. — Carroll v. State, 130 Ala. 99, 30 South. 394; Avery v. State, 124 Ala. 20, 27 South. 505.

Tyson, Dowdell, and Simpson, JJ., concur.