Opinion
8 Div. 714.
August 16, 1960.
Appeal from the County Court, Morgan County, R.L. Hundley, J.
Russell W. Lynne, Decatur, for appellant.
Where separation of jury during trial is shown such showing in and of itself creates prima facie a right to new trial. Echols v. State, 34 Ala. App. 305, 39 So.2d 44. Testimony of the State's witnesses is so in conflict and unbelievable that such testimony is not worthy of credence. Watkins v. Reinhart, 243 Ala. 243, 9 So.2d 113.
MacDonald Gallion, Atty. Gen., and Paul T. Gish, Jr., Asst. Atty. Gen., for the State.
The evidence was sufficient to sustain the verdict of the jury. Eason v. State, 30 Ala. App. 224, 4 So.2d 190; Id., 241 Ala. 570, 4 So.2d 192; Franklin v. State, 29 Ala. App. 306, 197 So. 55; Id., 240 Ala. 57, 197 So. 58. Proceedings in bastardy cases are the same as civil cases, and the court may allow the jury to separate. Borden v. State, 27 Ala. App. 271, 170 So. 98; Eason v. State, supra; Harris v. State, 28 Ala. App. 23, 177 So. 311; Brown v. Barr, 269 Ala. 497, 113 So.2d 924; Dulaney v. Burns, 218 Ala. 493, 119 So. 21; McGill v. Ala. F. I. Co., 221 Ala. 614, 130 So. 379.
In the bastardy proceedings in the court below this appellant was adjudged to be the real father of the illegitimate child born to the prosecutrix.
Although the prosecutrix is represented by the State in the bastardy proceeding, such proceedings are only quasi criminal and governed by the rules of appellate civil procedure. Borden v. State, 27 Ala. App. 271, 170 So. 98; Eason v. State, 30 Ala. App. 224, 4 So.2d 190; Sims v. State, 36 Ala. App. 349, 55 So.2d 863. Counsel for appellant has argued two specifications of error in his brief, and our review will be confined to these two points. Clearly from the reading of the record these are the only two points upon which counsel could base any assertion of error.
Counsel first argues that the judgment of the court below is not sustained by the great preponderance of the evidence. While the evidence presented by the appellant in the proceedings below would tend to show that he was not the father of the child, the testimony of the prosecutrix was in direct contradiction and by her testimony, if believed by the jury to the required degree, was entirely sufficient to support the verdict and judgment rendered. It is apparent from the verdict of the jury that they did so believe the evidence presented by the prosecutrix.
This conflict in the evidence merely presented a question of fact solely within the province of the jury to resolve. Hulsey v. State, 36 Ala. App. 200, 54 So.2d 92; Hornbuckle v. State, 30 Ala. App. 257, 4 So.2d 198; Eason v. State, supra.
The second point argued by counsel relates to the action of the trial court allowing the jury to separate during its deliberation.
As before stated, bastardy proceedings are governed in procedural matters as are civil proceedings. A trial jury may be permitted to separate during its deliberations. Brown v. Barr, 269 Ala. 497, 113 So.2d 924; McGill v. Alabama Fuel Iron Co., 221 Ala. 614, 130 So. 379; Dulaney v. Burns, 218 Ala. 493, 119 So. 21.
The judgment is due to be affirmed and it is so ordered.
Affirmed.