Samples v. State

BROWN, P. J.—

(1) There was evidence which, if believed by the jury, authorized them to find the defendant guilty; and the jury and trial judge were in better position to judge of the credibility of the witnesses than we are. After a careful consideration of the evidence, we are not convinced that the finding of the jury was wrong and unjust. — South. Ry. Co. v. Kirsch, 150 Ala. 659, 43 South. 796; Cobb v. Malone, 92 Ala. 630, 9 South. 738; Dillard v. Savage, 98 Ala. 598, 13 South. 514; Jones v. Tucker, 132 Ala. 305, 31 South. 21.

(2) The defendant’s witness Dock Wilson testified that he frequently had sexual intercourse with the prosecutrix; and on cross-examination testified that he was subpoenaed as a witness for the defendant on the preliminary trial before the justice of the peace and was sworn and put under the rule, and that he was not examined as a witness in that trial. This was evidence before the jury, and the solicitor had the right to comment on it in his argument. The case of DuBose v. Conner, 1 Ala. App. 456, 55 South. 432, does not sustain the appellant’s contention. In that case the witness was not examined, and there was nothing before the jury, and the solicitor was guilty of stating facts not in evidence. — Tannehill v. State, 159 Ala. 51, 48 South. 662 ; Roden v. State, 3 Ala. App. 202, 58 South. 72.

(3) There was nothing improper in the other part of the solicitor’s argument to which exception was reserved. He had a right to urge the'jury to discharge their duty and not to “wink” at the invasion of the sanctity of the home.

(4) The exception to the oral charge of the court cannot be sustained. The evidence showing acts of sexual intercourse between the prosecutrix and other men about the time the child was conceived was relevant for the purpose of affording an inference that another than the accused was the father of the child (Levy v. The State, 133 Ala. 190, 31 South. 805; Underhill, Crim. Evidence, § 532), and was not admissible as affecting the prosecutrix’s credibility as a witness (Underhill, Crim. Evidence, § 531; Terry v. State, infra, 74 South. 756).

. We find no error in the record, and the judgment of the circuit court is affirmed.

Affirmed.