The law of this case is fully settled by the principles declared in Boyd v. The State, 88 Ala, 169; 7 South. Rep. 268.
*49We there held, that one standing in loco parentis — exercising the parent’s delegated authority — may administer reasonable chastisement to a child, or pupil, to the same extent as the parent himself. The parent is not criminally liable, in all cases, merely because, in the opinion of the jury, the punishment inflicted is immoderate, or excessive. More than this is requisite to fasten upon him the guilt of criminality. He must not only inflict on the child immoderate chastisement, but he must do so malo animo — with legal malice, or wicked motives; or else he must inflict on him some permanent injury. If there be no permanent injury inflicted, or no legal malice can be inferred, no conviction can follow. This is the necessary result of the rule, that the parent, as to such matters of discipline, exercises, pro hao vice, judicial functions, within the bounds above stated.
In determining the question of the reasonableness of the correction, or the existence of malice, the jury may consider the nature of the instrument used, and all the other attendant circumstances. The authorities bearing on these points are more fully discussed in Boyd’s Case, supra.
The rulings of the court are clearly opposed to these views, and for this reason the judgment must be reversed.
Whether the injury inflicted on the child was permanent in its nature, was a matter as to which no one could give a mere opinion, admissible in evidence, other than a physician, or like expert. The court did not err in excluding the opinion given by the witness Cheatham on this subject.
We perceive no error in the action of the court compelling the defendant to elect, on the one hand, between the introduction of the written statement made as a showing of what the absent witness would swear to if present, and, on the other, of the secondary testimony of such witness, as to the same matter, given on a former trial before the Becorder’s court. The former was original evidence,’and the latter was secondary, admissible only on the ground of necessity to prevent the defeat of justice. The written statement, being a substitute for the oral evidence of the absent witness, would seem to be the only competent evidence of the two. There is nothing, therefore, in this ruling of the court, of which the defendant can complain.
Beversed and remanded.