Opinion
5 Div. 673.
January 10, 1928.
Appeal from Circuit Court, Coosa County; E. S. Lyman, Judge.
Earnest Brown and Rose Sayers were convicted of living in adultery, and they appeal. Reversed and remanded.
The following requested charges were refused to defendants:
"(5) The court charges the jury that, no matter how strong the circumstances in this might point to the guilt of the defendants, if they can be reconciled with the theory that no acts of adultery or fornication have been committed, then the defendants are not shown to be guilty by that high degree of proof that the law requires, and in that event your verdict should be for the defendants.
"(6) The court charges the jury that, no matter how strong the circumstances in this case might point to the guilt of the defendants, if they can be reconciled with the theory that no act or acts of illicit intimacy has occurred between the defendants, then the defendants are not shown to be guilty by the high degree of proof that the law requires, and in that event your verdict should be for the defendants."
"(10) The court charges the jury that the burden of proof is upon the state, and it is the duty of the state to show beyond a reasonable doubt and to the exclusion of every other reasonable hypothesis every circumstance necessary to show that the defendants are guilty, before the defendants are required to introduce any evidence in his or her favor in this case or to explain any circumstances surrounding them, and, if there is a reasonable doubt of these defendants' guilt, then you must acquit the defendants.
"(11) The court charges the jury that, in order to establish a conviction of adultery or fornication, there must be acts of sexual intercourse, and mere evidence of opportunity and suggestive circumstances is insufficient to establish the offense."
"(15) The court charges the jury that, if the facts shown by the state in this case can be reconciled with the innocence of the defendants, then in that event the testimony is insufficient to sustain a conviction, and you should find the defendants not guilty."
"(17) The court charges the jury that in pronouncing the issues submitted to you in this case you should consider and weigh all the testimony. But that this does not mean that you should believe all or any part of it. But that it must be considered and given such weight as the manner of giving it in its intrinsic nature and the other testimony in the case entitles it to — this much and nothing more. This the jury must do, as this is the only way of performing your high-sworn duty or rendering a true verdict according to the evidence.
"(18) The court charges the jury that the only just foundation for a verdict of guilty in this case is that the jury shall believe from the evidence beyond a reasonable doubt and to a moral certainty that the defendants are guilty as charged in the indictment to the exclusion of every probability of their innocence and every reasonable doubt as to their guilt, and, if the testimony in this case has failed to furnish the aforesaid measure of proof and to impress the minds of the jury with such proof of the defendants' guilt, the jury should find them not guilty.
"(19) The court charges the jury that the burden of proof is never on the defendants to establish their innocence or to disprove the facts necessary to establish a crime of which he or she is charged, but that in this case, if any or all of the evidence after considering all of same, raises in the mind of the jury a reasonable doubt as to the guilt of the defendants, you should acquit them.
"(20) The court charges the jury that, if upon considering all the evidence, you have a reasonable doubt about the defendants' guilt, arising out of any part of the evidence, then you should find the defendants not guilty."
Pruet Glass, of Ashland, for appellants.
Demurrer to defendant Sayers' plea should not have been sustained. Culbreath v. State, ante, p. 143, 113 So. 465; Burt v. State, 20 Ala. App. 296, 101 So. 768. Defendants' requested charges were erroneously refused. Charges 5, 6: Cook v. State, 17 Ala. App. 347, 85 So. 823; Huskey v. State, 16 Ala. App. 485, 79 So. 159. Charge 11: Quartemas v. State, 48 Ala. 269. Charge 17: Bailey v. State, ante, p. 185, 113 So. 830; Hurd v. State, 94 Ala. 100, 10 So. 528; Davidson v. State. 167 Ala. 68, 52 So. 751, 140 Am. St. Rep. 17. Charge 18: Stevens v. State, 6 Ala. App. 6, 60 So. 459. Charge 20: Bailey v. State, supra. Defendants were due the affirmative charge. Huskey v. State, supra; Cook v. State, supra; Rich v. State, 1 Ala. App. 243, 55 So. 1022.
Charlie C. McCall, Atty. Gen., for the State.
Brief did not reach the Reporter.
There are many questions presented by this record, upon pleading, evidence, and refused charges, but under our view of this case it will not be necessary to pass upon these questions specifically.
The defendant Rose Sayers, when called to plead, filed a plea in abatement setting up the facts that she was called before the grand jury returning the indictment against her by legal summons and forced and required to give evidence in the cause; that in response to such summons and demand she did testify as to her relations with her codefendant; that out of the investigation by the grand jury, a part of which was her testimony, the indictment in this case was returned. The state's demurrer to this plea was sustained. The indictment was returned at the July term, 1925; the cause stood for trial at that term, and was continued from term to term until the April term, 1927, when this plea was filed. The plea was filed too late. Laws v. State, 144 Ala. 118, 42 So. 40; Verberg v. State, 137 Ala. 73, 34 So. 848, 97 Am. St. Rep. 17. Moreover, it may well be questioned as to whether the remedy of defendant is by plea in abatement, or by motion to quash. That it has been used, we are aware, but, in the case of Burt v. State, 20 Ala. App. 296, 101 So. 768, this court, while passing on the merits of the plea, did not hold it to be proper; on the other hand, we have said that the proper remedy was by motion to quash. This we think is supported by the decisions. Culbreath v. State, ante, p. 143, 113 So. 465; Joyner v. State, 78 Ala. 448; Sparrenberg v. State, 53 Ala. 481, 25 Am. Rep. 643.
It is insisted that the defendants were entitled to the general affirmative charge, because no specific act of sexual intercourse had been proven. To sustain a conviction for this charge, there must be proven by the state beyond a reasonable doubt, either by direct evidence, or by the facts and circumstances that will warrant the jury in reaching the conclusion that there has been at least one act of illicit sexual intercourse between the parties, with an agreement between them, either expressed or implied, to continue the relation whenever opportunity offered and they so desired. Cook v. State, 17 Ala. App. 347, 85 So. 823; Brown v. State, 108 Ala. 18, 18 So. 811; Palmer v. State, 168 Ala. 124, 53 So. 283.
It is admittedly a fact in this case that there is no direct proof of the corpus delicti, and that the state must rely for a conviction on facts and circumstances surrounding the parties to establish the act of sexual intercourse between the parties, without which there can be no conviction. To do this, the evidence offered must be of such character as to lead to an act of illicit intercourse by fair inference as a necessary conclusion, and is not susceptible of a reasonable interpretation consistent with the defendant's innocence. Richardson v. Richardson, 4 Port. 467, 30 Am. Rep. 538; Mosser v. Mosser, 29 Ala. 313; Copeland v. State, 12 Ala. App. 169, 67 So. 623. In Coleman v. Coleman, 198 Ala. 225, 73 So. 473, after citing many cases and quoting from some eminent jurist, Thomas, J. in Coleman v. Coleman, supra, lays down this general rule: "The circumstances must be such as would lead the guarded discretion of a reasonable and just man to the conclusion" of guilt. In the same opinion, Mr. Justice Thomas says: "What are the circumstances which lead to such a conclusion cannot be laid down universally." It is also held that these circumstances must be considered by the situation and character of the parties, their station in life, the living conditions surrounding them, the state of general manners, and the like. Authorities, supra. What would be undue familiarity at one time would not be at another and under different conditions, and acts and association between one man and woman might authorize an inference of guilt, when the same acts and association between another man and woman under different conditions might be susceptible of being reconciled consistent with innocence, or might even not lead to adverse comment.
The evidence in this case took a wide range, showing the separation of Brown and his wife and Mrs. Sayers and her husband, the business partnership existing between the defendants, their living conditions, and a close and minute scrutiny of their acts and associations covering a period of two years. All of this evidence was relevant and admissible as tending to show the relationship of the parties in connection with such evidence as might tend to show an undue intimacy, and all to be considered by the jury under proper instruction from the court. Collins v. State, 14 Ala. 608; 9 Mich. Dig. p. 558, par. 10 (6); Id., 559, par. 10 (8); Cook v. State, 17 Ala. App. 347, 85 So. 823; Bodiford v. State, 86 Ala. 67, 5 So. 559, 11 Am. St. Rep. 20.
From the foregoing it follows: (1) The court did not err to the injury of defendants in its several rulings on the evidence; (2) the court did not err in refusing to give at the request of defendant the general affirmative charge; (3) the court did err to a reversal in refusing to give as requested defendants' charges 5, 6, and 15.
Refused charge 11 is invasive of the province of the jury.
Refused charge 10 pretermits a consideration of the evidence as a basis for a reasonable doubt.
Refused charge 17 is an argument pure and simple.
Refused charge 18 states a correct proposition of law, and should have been given. A charge similar to this was held to be bad in Stevens v. State, 6 Ala. App. 6, 60 So. 459, but the two cases there cited do not sustain the court in its holding. The criticism of the charge in the Stevens Case we think was not justified, and even that criticism has been met by this defendant in his requested charge 18.
Refused charges 19 and 20 are good charges and should have been given.
It follows also that the trial judge committed error in refusing to grant the defendants' motion for a new trial.
For the errors pointed out, the judgment as to both defendants is reversed, and the cause is remanded.
Reversed and remanded.