Opinion
5 Div. 850.
January 12, 1932. Rehearing Denied March 22, 1932.
Appeal from Circuit Court, Tallapoosa County; W. B. Bowling, Judge.
Birdus Coan was convicted of bastardy, and he appeals.
Affirmed.
Certiorari denied by Supreme Court in Coan v. State (5 Div. 114) 224 Ala. 584, 141 So. 263.
Jacob A. Walker and Hartwell Davis, both of Opelika, for appellant.
Chapter 157, §§ 4479, 4495, of the Code of 1923, is in direct contravention of the bastardy statutes, sections 3416-3439, and, being a later statute, operates to repeal the bastardy statute. The affidavit of prosecutrix charging an offense "against the peace and dignity of the State of Alabama," is an offense, if any, under Code, §§ 4479-4495, and could not be instituted before a justice of the peace of Tallapoosa county; prosecutrix and her child living in Lee county. There was a final judgment rather than a judgment of probable cause, in the justice court, and hence the circuit court acquired no jurisdiction. Code 1923, § 3418. The filing of a bond and affidavit in a bastardy proceeding is jurisdictional. The record does not disclose that the jurisdictional preliminary proceedings were ever returned or certified to the circuit court. Code 1923, §§ 3416-3419; Hanna v. State, 60 Ala. 100.
Thos. E. Knight, Jr., Atty. Gen., and Jas. L. Screws, Asst. Atty. Gen., for the State.
The complaint was properly made before a justice of the peace in Tallapoosa county, where the child was born. Defendant was duly adjudged guilty by the justice and bond was returnable to the circuit court of Tallapoosa county. As he was found guilty, it necessarily follows there was probable cause for believing him guilty as charged. Code 1923, §§ 3416, 3418, 3419. The objection that the affidavit concluded "against the peace and dignity of the State of Alabama" is without merit. Technical rules need not be followed in bastardy proceedings, and objections to the affidavit cannot be raised for the first time on appeal. Owens v. State, 21 Ala. App. 321, 108 So. 654; State v. Rowell, 4 Ala. App. 207, 58 So. 1007. Chapter 85 is not superseded by chapter 157 of the Code. Although the term "parent" as defined in section 4479 may refer to the father of a bastard child, yet chapter 157 may be only applicable when it is a fact that defendant is the parent. Chapter 85 is applicable when such a fact is pending adjudication. Patterson v. State, 23 Ala. App. 342, 127 So. 792.
The bastardy statutes (chapter 85 [sections 3416-3439], of the Code of 1923) are not repealed by the desertion and nonsupport statutes (chapter 157 [sections 4479-4495], of the Code of 1923).
The father of an illegitimate child may be "called to account," in either of the modes indicated by the two sets of statutes mentioned above. Patterson v. State, 23 Ala. App. 342, 127 So. 792, certiorari denied by Supreme Court, 221 Ala. 96, 127 So. 793.
Here, the proceeding is under the "bastardy statutes," where "technical rules are not required" — nor applied. Owens v. State, 21 Ala. App. 321, 108 So. 654.
The venue of the action was properly in Tallapoosa county, where the child was born, Code 1923, § 3416.
While the proceedings appear to have been conducted in a rather loose, more or less slipshod, manner, yet it sufficiently appears that all the jurisdictional requirements were met, and that the only issue involved in the case was fairly submitted to the jury, in accordance with Code 1923, § 3425. Appellant admitted having sexual intercourse with the prosecutrix, the mother of the child, often, if not regularly, over a long period of time, but denied having such intercourse over a period of time deemed by him to cover the space of time when her conception must have taken place; it not being denied that she actually gave birth to an illegitimate child.
The evidence was ample — in fact, overwhelming — to support the verdict of the jury. If there were technical errors committed in rulings on the taking of testimony, they were but technical, and, in our considered opinion, in no wise prejudicial to appellant's rights. Supreme Court Rule 45.
He appears to have had a fair trial, substantially in accordance with the rules of law obtaining.
There is, nowhere, in the rulings underlying the assignments of error argued, prejudicial error, and the judgment appealed from is affirmed.
Affirmed.