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[Carney v. The State.]

The court refused to give two charges requested by defendant, which, in substance, are set out in the opinion.

G. L. & H. T. SMITH, for appellant.-If the wife has a support and is not in danger of becoming a burden on the public, defendant is not guilty.-Taylor's Case, 59 Ala. 19. The evidence that Judge supported his mother was irrelevant and immaterial and calculated to prejudice the jury against defendant.-8 Port. 511; 3 Ala. 679; 30 Ala. 672; 31 Ala. 53; 40 Ala. 259; 42 Ala. 51; 42 Ala. 74. The court erred in excluding evidence of what defendant heard and saw at the assignation house.-Boulo's Case, 49 Ala. 24; Taylor's Case, 59 Ala. 19; Code of 1886, § 4047.

T. N. MCCLELLAN, Attorney-General, contra.

SOMERVILLE, J.-The defendant was tried and convicted for abandoning his family and leaving them in danger of becoming a burden to the public-an offense which is made punishable by fine and imprisonment under the provisions of the statute.-Code, 1886, § 4047; Code, 1876, $ 4218.

The two charges requested by the defendant, and refused by the court, assert in effect that the statute must be construed to mean that the danger of becoming a burden to the public, in which the abandonment of the husband or parent places his family, must be immediate, or imminent, and not dependent on any future contingency, however probable in the ordinary course of events. This construction, in our judgment, is not tenable. The members of the defendant's family whom he is here charged with having abandoned are his wife, and a child of tender years. They were thrown upon the charity of a brother-in-law of the wife, who possessed but meager means and was under no legal liability whatever to furnish them maintenance. The evidence. tended, moreover, to show that the wife and child owned no property, and were unable to support themselves, either for want of ability, or opportunity. It was for the jury to say whether the evidence satisfied them beyond a reasonable doubt that the defendant's family, under all the circumstances of the case, would probably become a burden to the public by reason of any contingency likely to happen, within a reasonable time, and in the ordinary course of events. Such contingency need not be immediate, nor ought it to be

[Carney v. The State.]

too remote or speculative. It should be one that may be reasonably apprehended between these two extremes of time. The instructions requested on this point were properly refused.

The statute can not be construed to make it criminal for one to abandon his wife under any and all circumstances. If she be guilty of adultery, as the evidence tends to show the defendant's wife was in this case, he would certainly be excused in leaving her as a preliminary step to making application to the Chancery Court for a divorce on this ground. To continue this marital relation with her, after information of her guilt, would be a condonation of it, and would operate to bar his right to claim a severance of the marriage tie. There can be no guilt where there is legal excuse or justification for the act charged. But while this is true, abandonment is not excused by mere suspicion of the wife's infidelity based on rumors or other hearsay evidence. It is not enough that he may have been informed of alleged facts by others which would justify him in believing her to be guilty. The risk of abandonment is his own. The fact of her guilt must be shown, and the burden is on the husband to show it. The Circuit Court properly excluded all the evidence relating to what occurred at a certain assignation house kept by one Cora Levy, a prostitute, and her declaration made to the defendant regarding his wife. This was all hearsay, except the statement that defendant went to the house, and was refused admission; that he heard the voice of women in the house, whose identity the keeper attempted to conceal; and that defendant saw some unknown female clandestinely escaping from the premises by the back way. This evidence did not tend to identify this female as the defendant's wife, being too remote for this purpose. Any woman, not a common prostitute, found in such a place, would probably seek to escape observation by strangers who might persist in entering the premises uninvited.

It was competent to prove that the defendant's wife, Mrs. Carney, had not earned her living since the birth of her child, and also that her brother-in-law, Judge, who was supporting her had as many as four children, and was also supporting his own mother. These facts all bore on the question as to the probability of Mrs. Carney becoming a burden to the public, because it tended, on the one hand, to rebut the inference that she was able to maintain herself, and, on the other, to show the difficulty attending the ability

[Myers et al. v. The State.]

of her brother-in-law to maintain her by continuing the exercise of his charity towards her. It was for the jury to say what was the probability of the termination of this benefaction, which was of grace and not of legal duty.

The rulings of the court are free from error, and the judgment must be affirmed.

Myers et al. v. The State.

Indictment for Rape.

1. Indictment for rape.-The use of the word female in an indictment for rape means the same thing as woman, and does not render the indictment insufficient.

2. Rape; evidence.-A physician who had examined a girl, alleged to have been raped, ten days after the offense was committed, was asked to state the condition in which he found her and her clothing. His answer was confined to the condition of the girl. Just what his answer was, the bill of exceptions failed to disclose. Held, there was no error in overruling objection to question and to answer. Evidence as to condition of clothing at such time not having been given, there was no injury from the question. The testimony as to her personal condition may have been pertinent and competent.

APPEAL from Calhoun Circuit Court.
Tried before Hon. L. F. Box.

The indictment found at February term 1888 of the Circuit Court, stated that "Joe Myers and Mary Myers forcibly ravished Mary H. Jones, a female, against the peace and dignity of the State of Alabama." There were several grounds of demurrer interposed to the indictment; among them, the failure to allege that the said Mary H. Jones was a woman and that she did not consent to the ravishment. The objection to the testimony appears in the opinion. The defendants were convicted and sentenced to the penitentiary for life. They were respectively the stepfather and mother of the girl, who was between ten and eleven years old.

G. C. ELLIS and KELLY & SMITH, for appellants.—The indictment follows the form in the Code of 1876, but the Code of 1886, repealed the old and prescribed a new form which is not followed. Hence it should be good at common law or is subject to the demurrers, and is insufficient in law

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[Myers et al. v. The State.]

to sustain a conviction.-Dreyfus v. State, 3rd S. Reports, 430. The testimony of the expert witness as to the condition of prosecutrix ten days after the alleged ravishment, ought to have been excluded, as it could not tend to show the commission of the offense, and may have confused the mind of the jury.-Wharton & Styles, Med. Jur., vol. 3, $ 212.

T. N. MCCLELLAN, Attorney-General, contra.

STONE, C. J.-The words female and woman, used as the former was in the indictment before us, mean the same thing, and the indictment is sufficient.-1 Brick. Dig. 499, § 736; Sparrenberger v. State, 53 Ala. 481; Smith v. State, 63 Ala. 55; Block v. State, 66 Ala. 493; Parker v. State, 39 Ala. 365; Watson v. State, 55 Ala. 150.

The expert witness, who had made a professional examination of the girl, the alleged subject of the rape, was asked to state the condition in which he found her and her clothing. This was ten days after the offense was charged to have been committed. The witness gave testimony "as tothe condition of the girl on the 27th day of January, 1888." He is not shown to have said any thing about the clothing. Both the question and the answer were objected to, and exceptions reserved.

As there is not shown to have been any testimony given in regard to her clothing, we need only say that such testimony would probably have been improper, given so long after the alleged offense. It can not be presumed that the physician had knowledge of the clothes she had worn ten days before. But the question did no harm unless it was answered; and in the absence of all statement that it was answered, we must presume that it was not.-3 Brick. Dig. 444, § 577.

The testimony of what the physician discovered on an examination of the girl ten days after the injury, was not per se irrelevant. It is not shown what the testimony was. It may have tended to prove, or confirm other testimony tending to prove, penetration; a material ingredient in the crime of rape.-2 Bish. Cr. Law (7th Ed.), § 1127. Other possible pertinent facts or circumstances might exist and be discovered by a physician, about which he would be clearly competent to testify.

There is no error in the record.

[Bibb v. The State. I

Bibb v. The State.

Indictment for Exhibiting Gaming Table.

1. Keeping gaming table; use and keeper thereof.--The statute providing punishment for keeping gaming table (Code of 1876, § 4208), aims at the use to which the table is appropriated, without regard to its appliances or adaptation to any particular game. The person having possession or custody of the table, authority over its use, and supervising the gaming is the keeper, or is interested or concerned in keeping it.

2. Same; discretion of jury to assess fine; erroneous charge.-A charge instructing the jury that they must assess a fine against defendant if found guilty of keeping gaming table (under § 4208, Code, 1876), is erroneous. Section 4500, Code, 1886, leaves the imposition of a fine in the discretion of the jury, when the court may, as in the present case, in addition to a fine impose imprisonment or hard labor for the county.

APPEAL from Montgomery City Court.
Tried before the Hon. T. M. ARRINGTON.

WATTS & SON, for appellant. The court erred in charging the jury that if they found the defendant guilty they must assess a fine," &c., § 4453 of Code of 1876; § 4500, Code of 1886; McPherson v. The State, 54 Ala. 225.

T. N. MCCLELLAN, Attorney-General, contra.

CLOPTON, J.-The defendant was indicted under section 4208 of Code of 1876, which provides: "Any person who keeps, exhibits, or is interested or concerned in keeping or exhibiting any table for gaming, of whatsoever name, kind or description, not regularly licensed under the laws of this State, must, on conviction, be fined not less than one hundred nor more than one thousand dollars; and may also be imprisoned in the county jail, or sentenced to hard labor for the county for not more than twelve months.” statute is aimed at the use to which the table is appropriated. Any table used for gaming, without regard to its appliances or adaptation to any particular game, is included in the statute; and if the defendant had the possession or custody of the table, authority over its use, and supervised the gaming, he was the keeper, or interested or concerned in keep

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