Dorgan v. State

72 Ala. 173

• Court: Supreme Court of Alabama
• Decided: December 15, 1882
• Status: Published

Opinion

SOMERYILLE, J.

A proceeding under our statute in a bastardy case (Code, 1876, §§4071 et seq.) has been held by this court not to be a misdemeanor, or otherwise strictly criminal in its nature, though adjudged to be penal in some of its characteristics.—Paulk v. State, 52 Ala. 427; Satterwhite v. State, 28 Ala. 65. In State v. Hunter, 67 Ala. 81, we pronounced the sounder and better view to he, that such proceeding was sui generis, partaking of the nature of both a criminal prosecution and of a civil suit — or, in other words, that it was neither a civil suit, nor a criminal prosecution, but rather of a quasi-criminal character.

In this view of the matter, the court did not err in refusing to allow the appellant as many as site peremptory challenges, which is the number prescribed by section 1879 of the Code in the trial of misdemeanors, lie could not complain that he was restricted to only/cm/’ such challenges, the number allowed in the trial of civil causes. — (’ode, § 8016. At common law, peremptory challenges were never allowed in civil suits, but only in criminal cases punishable capitally.—United States v. Cottingham, 2 Blatch. (C. C.) 470; 4 Black Com. 354. No express provision seems to be made by statute touching this matter in bastardy cases, — a clear instance of m*vx omissi/s, unless it can be supplemented by adopting the rule applicable to civil cases, upon principles of analogy.

The two written charges requested by the appellant, were certainly misleading, if not erroneous, and were properly refused. They are each obnoxious to the construction, that where one witness swears to the existence of a fact, and another witness of equal credibility, or equally worthy of belief, swears to the non-existence of the same fact,-the fact is not proved, unless there is other satisfactory proof of it, which, standing alone, would of itself he sufficient to establish the probability of its truth. In such cases, a very slight circumstance, or fact, might be sufficient to corroborate the one witness or the other, so as to produce a rational conviction of the truth or falsity of t\\Q fac-tum 2>rol>u»fhniu when, standing alone and disconnected, it might weigh very little with the jury, and be totally inadequate for this purpose.

It is provided by the statute, that ‘‘the court, on the appearance of the accused, must, if lie demand it, cause an issue to be made up, to ascertain whether he is the real father of the child or not.” — Code, ^ 4078. The judgment-entry recites, that an issue was made up, under the direction of the court, “ as to who ivas the real father of a certain female child mentioned in the complaint?' and the jury returned a verdict in favor of the State, and that they found that the defendant was the real father of the child. ' The issue joined and tried was, evidently, one having reference to the statements set forth in the complaint, which was under oath, and contained the necessary averments required by the statute. — Code, 1876, § 4071. The complaint alleges, that the prosecutrix was a single woman; and the truth of this alleged fact was necessarily a part of the issue made up and tried. The complaint, therefore, presents a substantial ground of accusation, or cause of action, coming within the statute; and this court will not reverse the cause, for the mere reason that the evidence set out in the bill of exceptions fails to show that the complainant was single, or unmarried. This court has no power to review the verdict of a .-jury in their findings on the evidence.—Austin v. Pickett, 9 Ala. 102; Shouse v. Lawrence, 51 Ala. 559.

Affirmed.