Beason v. State

Supreme Court of Alabama

Beason v. State

72 Ala. 191

CourtSupreme Court of Alabama

DecidedDecember 15, 1882

StatusPublished

Cited by21 cases

This text of 72 Ala. 191 (Beason v. State) is published on Counsel Stack Legal Research, covering Supreme Court of Alabama primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Beason v. State, 72 Ala. 191 (Ala. 1882).

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Opinion

BKICKELL, C. J.

Each count of the indictment is in the form prescribed by the Code; the first charging the offense of r.ape, and the second that of carnal knowledge of a female child „ under ten years of age, or, in the alternative, the abuse of such child in the attempt to have carnal knowledge of her. Code, §§ 4304, 4306; Forms 1 and 8, p. 992. The offenses are of the same character, and subject to the same punishment; and they may be joined, in different counts, in the same indictment. The motion to quash, and the demurrer to the indictment, were properly overruled. Nor was there any ground for compelling the State to elect the prosecution of the one offense, to the exclusion of the other.—Dawkins v. The State. 58 Ala. 376.

2. The juror "Wedgeworth was not subject to challenge for cause. It is not the mere formation of an opinion touching the guilt or innocence of the accused, which disqualifies a juror. The statute disqualifies him only when he has a fixed opinion, which would bias his verdict. An opinion, no matter how formed, or upon what it may be based, that is not fixed, that may be changed by the evidence, that will not bias the verdict, will not disqualify.—Carson v. State, 50 Ala. 134; Bales v. State, 63 Ala. 30.

3. The child injured, at the time of the injury, was above the age of eleven years; and being offered as a witness, the defendant objected to her competency. To ascertain her capacity, she was examined by the court, and by counsel, in the presence, and under the direction of the court. While it can not be said that’ she manifested a want of understanding common to children of her years, yet she manifested an entire want of instruction as to the nature and effect of an oath, of all re[194]*194ligious training, and utter ignorance of the existence of a Supreme Being, “ the rewarder of truth and the avenger of falsehood.” While we agree to the doctrine laid down in Wade v. State, 50 Ala. 164, that in passing upon the capacity of children of tender years to testify, much must be left to the sound discretion of the primary court, and that it is only in strong cases the ruling of the court admitting them as witnesses should be reversed, we are constrained by the later ease of Carter v. State, 63 Ala. 52, to hold the child incompetent, and that it was error to permit her to testify.

Let the judgment be reversed, and the cause remanded ; the prisoner will remain in custody, until discharged by due course of law.

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BKICKELL, C. J.

Each count of the indictment is in the form prescribed by the Code; the first charging the offense of r.ape, and the second that of carnal knowledge of a female child „ under ten years of age, or, in the alternative, the abuse of such child in the attempt to have carnal knowledge of her. Code, §§ 4304, 4306; Forms 1 and 8, p. 992. The offenses are of the same character, and subject to the same punishment; and they may be joined, in different counts, in the same indictment. The motion to quash, and the demurrer to the indictment, were properly overruled. Nor was there any ground for compelling the State to elect the prosecution of the one offense, to the exclusion of the other.—Dawkins v. The State. 58 Ala. 376.

2. The juror "Wedgeworth was not subject to challenge for cause. It is not the mere formation of an opinion touching the guilt or innocence of the accused, which disqualifies a juror. The statute disqualifies him only when he has a fixed opinion, which would bias his verdict. An opinion, no matter how formed, or upon what it may be based, that is not fixed, that may be changed by the evidence, that will not bias the verdict, will not disqualify.—Carson v. State, 50 Ala. 134; Bales v. State, 63 Ala. 30.

3. The child injured, at the time of the injury, was above the age of eleven years; and being offered as a witness, the defendant objected to her competency. To ascertain her capacity, she was examined by the court, and by counsel, in the presence, and under the direction of the court. While it can not be said that’ she manifested a want of understanding common to children of her years, yet she manifested an entire want of instruction as to the nature and effect of an oath, of all re[194]*194ligious training, and utter ignorance of the existence of a Supreme Being, “ the rewarder of truth and the avenger of falsehood.” While we agree to the doctrine laid down in Wade v. State, 50 Ala. 164, that in passing upon the capacity of children of tender years to testify, much must be left to the sound discretion of the primary court, and that it is only in strong cases the ruling of the court admitting them as witnesses should be reversed, we are constrained by the later ease of Carter v. State, 63 Ala. 52, to hold the child incompetent, and that it was error to permit her to testify.

Let the judgment be reversed, and the cause remanded ; the prisoner will remain in custody, until discharged by due course of law.

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72 Ala. 191, Counsel Stack Legal Research, https://law.counselstack.com/opinion/beason-v-state-ala-1882.

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