[Wester v. The State.] MASSEY WILSON, Attorney-General, for the State. TYSON, J.-While the record discloses a plea in abatement to the affidavit, upon which the defendant was arrested and tried, it does not show any disposition whatever of the plea. The judgment entry affirmatively shows that issue was joined upon the plea of not guilty, which excludes any assumption that the issue was joined on the plea in abatement. There is, therefore, no room for the application of the principle that the finding of the court was erroneous in failing to respond to the issue presented by the plea in abatement.-Dannelley v. State, 130 Ala. 132, 135. No error appearing on the record, the judgment of conviction must be affirmed. Affirmed. Wester v. The State. Indictment for Abandoning a Family. 1. Indictment for abandoning family; wife competent witness.-The statute making the wife a competent witness against her husband under an indictment for abandoning his family (Acts 1903, p. 32), is not an ex post facto law within the meaning of the constitutional provision. 2. Indictment for abandoning family; admissibility of evidence.— On a trial under an indictment for abandoning his family, it is not competent for the defendant to ask the witness whether or not he had taken liberties with his wife's person prior to the abandonment. APPEAL from the City Court of Gadsden. Tried before the Hon. JOHN H. DISQUE. The appellant in this case was indicted, tried and convicted for abandoning his family and leaving them in danger of becoming a burden to the public. The indictment was preferred and filed in court on September 26, [Wester v. The State.] 1902. The State introduced Vandy Wester, the wife of the defendant. The defendant objected to the examina tion of his wife as a witness upon the ground of incompetency. The court overruled the objection, and the defendant duly excepted. The witness testified that she was married to the defendant on July 21st, 1901, that a baby was born to them on March 31, 1902, and that on April 20, 1902, the defendant carried her and her child to her father's and abandoned them, and had contributed nothing to her support or the support of the child. Jasper Roan, a witness for the State, testified that he had known the defendant's wife for eight or nine years; that during a part of that time he lived in the same community with her, and for a period of three years visited her; that during the last four or five years he had known very little of the defendant's wife. Whereupon the defendant asked the witness the following question: "Did you, during the time you visited her, take any liberties with her person?" The State objected to this question. The court sustained the objection, and the defendant duly excepted. A similar question was asked Luther Jolly, a witness for the defendant. The same objections and rulings were made to this question. Thereupon the court stated to the defendant's attorney: "You may ask the witness if he ever had adulterous intercourse with Vandy Wester." This question was asked, and the witness answered "No." LEE, LEE & LEE, for appellant.-Cited Hart v. State, 40 Ala. 32. MASSEY WILSON, Attorney-General, for the State. SIMPSON, J.-There was no error in allowing the wife of the defendant to testify in this case.-Acts, 1903, p. 32. This act is not an ex post facto law, within the meaning of the constitutional provision. "A statute which simply enlarges the class of persons who may be competent to testify, is not ex post facto in its application to 142 58 144 279 144 359 [Yeats v. The State.] offenses previously committed."-Hopt v. People of Utah, 110 U. S. 575; Mrous v. State, (31 Tex. Crim. Rep. 597) 37 Am. St. Rep. 834. The questions asked the witnesses Jasper Roan and Luther Jolly were leading, and, in addition, while the testimony sought to be elicited, might possibly have been competent in connection with other circumstances tending to prove adultery on the part of defendant's wife, yet, as there was no other testimony tending that way, and the defendant was permitted to ask the witnesses the direct question as to whether they had committed adultery with her, which questions were answered in the negative, there was no error in sustaining the objection to this testimony. The judgment of the court is affirmed. MCCLELLAN, C.J., TYSON and ANDERSON, J.J., concur ring. 1. Yeats v. The State. Prosecution for Carrying Concealed Weapon. Trial and its incidents; general request for charges by defendant; how reviewed on appeal.-The recital in bill of exceptions that the defendant "asked the court to give the following charges in writing, to-wit:" followed by four charges numbered consecutively, does not show that the court was separately requested to give each of said charges; and the court cannot be put in error for refusing to give said charges unless there was error in refusing all of them. 2. Charge of court to jury; reasonable doubt.-In a criminal case, a charge which instructs the jury that before the defendant can be convicted, "each and everyone of you must be persuaded beyond a reasonable doubt to a moral certainty, and to the exclusion of every reasonable hypothesis" of defendant's guilt as charged, is erroneous and properly refused. [Yeats v. The State.] APPEAL from the County Court of Coffee. The appellant in this case was tried and convicted of carrying a pistol concealed about his person. The facts relating to the ruling of the trial court which is reviewed on the present appeal are sufficiently stated in the opinion. Among the charges requested by the defendant in the manner as set forth in the opinion was the following: "4. The court charges the jury that each and every one of you must be persuaded beyond all reasonable hypothesis, that the defendant on the occasion testified to by the State's witnesses, had the pistol concealed on his person, or you must acquit the defendant." SOLLIE & KIRKLAND, for appellant. MASSEY WILSON, Attorney-General, for the State, cited Rarden v. Cunningham, 136 Ala. 263; Verberg v. State, 137 Ala. 73; Kennedy v. State, 85 Ala. 26; Jefferson v. State, 110 Ala. 89. DENSON, J.-The only question presented for review by the record in this case relates to the refusal by the court to give certain special charges that were requested in writing by the defendant. The bill of exceptions with reference to the manner in which the charges were presented to the court contains this statement, viz: "This being all the evidence, the defendant after the court had given the general charge to the jury, asked the court to give the following charges in writing, to-wit:" Then follow four charges, numbered 1, 2, 3 and 4, respectively. In the case of McGehee v. State, 52 Ala. 224, the bill of exceptions contained this statement, viz: "The defendant requested the court to give the following charges in writing, which the court refused, and to the refusal of the court to charge as requested, the defendant excepted." Then followed charges numbered from one to four, inclusive. The court construing the bill used the following language: "A bill of exceptions is construed [Yeats v. The State.] most strongly against the party excepting, and if it will admit of two constructions, one of which will reverse, and the other support the judgment, the latter construction will be adopted. A reasonable construction of the bill of exceptions is, that the charges requested were requested not separately, but as a whole. Adopting this construction, if any one of the charges is erroneous, there was no error in refusing the whole." This rule in construing bills of exceptions has been several times followed.-Rarden v. Cunningham, 136 Ala. 263; Verberg v. State, 137 Ala. 73; Bell's case, 37 Sou. Rep. 281. Construing the bill of exceptions by the rule above stated, if one of the four charges requested is bad, the court did not err in refusing all of them. In the case of Harwell v. Phillips, Buttorff Mfg. Co., 123 Ala. 464, cited by counsel for appellant, the only question there determined by the court is that it is unnecessary to reserve exceptions to the giving or refusal of written charges, as the statute (§ 613 of the Code of 1896), dispenses with the necessity to reserve exceptions to such rulings, consequently that case is not in conflict with what we have said above. Charge numbered 4 is bad, in that it required an acquittal of the defendant upon a failure of any one of the jurors to be convinced of defendant's guilt beyond a reasonable doubt.-Hale's case, 122 Ala. 85; Goldsmith's case, 105 Ala. 8; Cunningham's case, 117 Ala. 59. There is no error in the record, and the judgment of the court is affirmed. MCCLELLAN, C.J., HARALSON and DOWDELL, J.J., concurring. |