Bastardy prosecution under Chapter 85, Code 1923, Sections 3416 et sequitur, Code 1940, Tit. 6, § 1 et seq. From an adverse judgment, upon trial in the circuit court, the defendant appeals to this court.
There was a material conflict in the evidence. That for the State substantially proved each element of the charge, whereas the testimony of the defendant and his witnesses supported his claim of innocence. In such circumstances, the court acted correctly in submitting the case to the jury for decision. There was no impropriety, therefore, in refusing to the defendant his request for a directed verdict. The later overruling of his motion for a new trial was also without error. McClain v. State, Ala.App., 1 So.2d 36;1 Corona Coal Co. v. Sexton, 21 Ala. App. 51, 105 So. 716, certiorari denied213 Ala. 554, 105 So. 718; Powell et al. v. Pate, ante, p. 10,1 So.2d 36.
The testimony of prosecutrix, that "at the time I had sexual intercourse with the defendant I was not married; I was a single woman at that time", constituted sufficient proof of her status as a single woman to satisfy the requirement of the statute. Code, supra, Section 3416.
Able counsel for appellant urge that we predicate a reversal upon the action of the trial court in allowing the prosecutrix, by her denials of the truth thereof, to impeach the testimony in the showings for three absent witnesses, introduced in evidence by the defendant with the consent of the State. The cases cited in support are not instantly apposite.
A party who, in order to avoid a continuance, admits that an absent witness would testify to certain facts is not, as a rule, thereby precluded from disproving such facts by refutable testimony. Although it is not permissible to impeach such witness by proof of contradictory statements because, manifestly, the necessary predicate cannot be laid, (Gregory v. State, 140 Ala. 16, 37 So. 259; Gafford v. State, 125 Ala. 1,28 So. 406), yet the admission that the witness, if present, would give certain testimony is not an admission of the truth thereof or that such testimony is indisputable. The legal effect of such showing is the admission by the opposite party that, if present, the witness would so testify, not that such testimony is true. Smith v. State, 142 Ala. 14, 26, 39 So. 329; Burris v. Court, 48 Neb. 179, 66 N.W. 1131; United States v. Taylor, C.C., 35 F. 484; 2nd Wigmore on Evidence, §§ 888, 2595; 70 C.J. p. 1160, § 1343.
Giving application here of this principle, it was competent, therefore, for the prosecutrix, in rebuttal, to testify in denial of the truth of the statements in the showing, such as that she had indulged in coition with one other than the defendant during the gestation of the present bastard.
We have given careful consideration to the case, in the light of the brief and argument of learned counsel, and are unable to discover error. We think the findings below should be upheld. The judgment must be affirmed.
Affirmed.
1 Ante, p. 88. *Page 226