Opinion
6 Div. 197.
January 10, 1928.
Appeal from Circuit Court, Marion County; R. L. Blanton, Judge.
Bastardy proceeding by the State against Oakland Green. Judgment against defendant, and he appeals. Affirmed.
C. E. Mitchell and W. B. Ford, both of Hamilton, for appellant.
There was no evidence that the child favored the defendant, and it was error to allow profert of it to be made. Boyette v. State, 215 Ala. 472, 110 So. 812. Defendant should not be convicted on the uncorroborated testimony of the prosecutrix. Shirey v. State, 21 Ala. App. 626, 111 So. 195; Code 1923, § 5490.
Charlie C. McCall, Atty. Gen., for the State.
Brief did not reach the Reporter.
We have carefully read and considered this record. The evidence is in conflict, and hence the court properly refused the affirmative charge. There is nothing in the bill of exceptions to impeach the manner of making profert of the baby. In a bastardy proceeding, profert of the baby is permissible. Brantley v. State, 11 Ala. App. 144, 65 So. 678. Refused charge 2 pretermits a consideration of the evidence, and refused charge 3 is covered by the given charges.
It is true this conviction rests upon the uncorroborated testimony of the mother of the child. That is true in most prosecutions of this character, and can rarely be avoided; but the jury, having all the parties before them, must determine and declare where the truth lies. The appellate court will not for that reason alone set aside the verdict, where the trial judge has overruled a motion for new trial. Let the judgment be affirmed.
Affirmed.