Opinion
6 Div. 776.
December 14, 1948. Rehearing Denied January 11, 1949.
Appeal from Circuit Court, Lamar County; Verdo Elmore, Judge.
Arthur (alias A.J.) Wilson was convicted of adultery, and he appeals.
Affirmed.
Certiorari denied by Supreme Court in Wilson v. State, 251 Ala. 676, 39 So.2d 252.
The following charges were refused to defendant:
The Court charges the Jury that if a conviction in this case depends upon the testimony of a single witness, and if the jury have a reasonable doubt as to the truthfulness of the testimony of such witness, they cannot convict the defendant.
8. The Court charges the Jury that if any of all of the witnesses for the State have exhibited or admitted bias, prejudice or anger or ill will against the defendant, or from all the evidence in the case you find such bias, prejudice, anger or ill will on the part of all or any of the State's witnesses, and if these things, when considered by you in connection with all of the other evidence in the case created in your minds a reasonable doubt of defendant's guilt, you should acquit.
21. The Court charges the jury that the defendant's innocence must be presumed until the case is proven against him, in all its material circumstances, beyond all reasonable doubt; that to find him guilty as charged, the evidence must be so strong and cogent as to show defendant's guilt to a moral certainty.
27. The law does not presume that the defendant is guilty in this case, but on the contrary, presumes as a matter of law and fact that the defendant is innocent, and that presumption of innocence goes with him in this trial until removed by proof of facts actually proving that he is guilty beyond a reasonable doubt.
34. The Court charges the jury for the defendant in this case that the defendant stands before you as a man of good character and as an innocent man, under the presumption of law, and this presumption of innocence absolutely demands at your hands a verdict of not guilty, unless and until the state has proven, from the evidence, beyond every reasonable doubt that he is guilty of the crime with which he is charged.
R.G. Redden and Young Young, all of Vernon, for appellant.
There must be a continuation, or agreement for continuation, coupled with one or more acts before it can be affirmed that the adulterous relation is established. Bodifield v. State, 86 Ala. 67, 5 So. 559, 11 Am. St.Rep. 20; Collins v. State, 14 Ala. 608; Hall v. State, 53 Ala. 463. Conviction for adultery resting principally upon conjecture cannot stand. Cornelison v. State, 24 Ala. App. 594, 139 So. 572; Garner v. State, 20 Ala. App. 268, 101 So. 506. A variance between the allegations and proof with respect to a material matter is fatal and entitles the accused to an acquittal. Munkers v. State, 87 Ala. 94, 6 So. 357; McCoy v. State, 232 Ala. 104, 166 So. 769; Armstrong v. State, 24 Ala. App. 334, 134 So. 897; Little v. State, 25 Ala. App. 273, 144 So. 462.
A.A. Carmichael, Atty. Gen., and Jas. L. Screws, Asst. Atty. Gen., for the State.
Adultery is a secret crime, and circumstantial evidence is sufficient to sustain a conviction. Brown v. State, 31 Ala. App. 233, 14 So.2d 596. It was proper to allow amendment of the complaint to read "Arthur" instead of "Authur". On appeal from county court to circuit court the trial is de novo. Code 1940, Tit. 15, § 363. The new complaint filed in the circuit court constitutes the charge against defendant, and the old complaint filed in the county court is amendable to cure inaccuracies and irregularities therein, the only prohibition being against charging a new offense. No new offense is here charged. Nailer v. State, 18 Ala. App. 127, 90 So. 131; Horn v. State, 22 Ala. App. 459, 117 So. 283. But the doctrine of idem sonans would be applicable. Reid v. State, 168 Ala. 118, 53 So. 254; Burton v. State, 10 Ala. App. 214, 65 So. 91; Morse v. State, 22 Ala. App. 93, 112 So. 806. Remarks of the solicitor were not objectionable, but if so, any harm was removed by withdrawal. Charges covered by the oral charge were refused without error.
The appellant, Arthur Wilson, and Era Mae Mathis were jointly accused of living in adultery. They were tried separately, and this appeal follows the conviction of the former.
The prosecution had its inception in the county court where the appellant was charged by the name of Authur Wilson. This appeared without change in the original complaint filed in the circuit court. Over objection of the appellant the trial judge permitted the solicitor to amend the original complaint by changing the name from Authur to Arthur.
On appeal to the circuit court the solicitor is required by statute to file a complaint. This complaint when filed becomes the charge against the defendant. To be sure, there must not be a departure from the original affidavit. The complaint in the circuit court is amendable so as to cure any irregularities or inaccuracies. Nailer v. State, 18 Ala. App. 127, 90 So. 131.
The amendment here had the effect of correcting the manner of spelling the defendant's first name. Clearly, this amounted to no more than clarifying an inaccuracy, and the objection to the amendment was properly overruled.
The evidence in the State's behalf tended to show that for several months prior to the beginning of the prosecution the appellant and Era Mae Mathis were often observed riding together in an automobile. Some neighbors testified that the defendant's car had been seen parked on numerous occasions near the lady's home.
It appears that Era Mae Mathis had four children by a deceased husband. The oldest of these children was a girl fifteen years of age at the time of the trial below. This little girl testified that Mr. Wilson visited her mother at various times; that they would go away in an automobile and leave all the children at home; that on one of these trips they left on Saturday afternoon and did not return until Sunday at 7:30 a.m. The witness deposed that on two occasions she "double dated" with her mother and Mr. Wilson. We will not set out the details of what occurred on these two automobile trips as they were related by the little girl from the witness stand. Suffice it for us to observe that the circumstances disclosed were such that the jury could have inferred that the elder couple engaged in acts of sexual intercourse.
We will omit any further attempt to delineate the tendencies of the State's evidence. Clearly, the lower court properly denied the appellant's motion to exclude the evidence. It is apparent, also, that the defendant was not due the general affirmative charge. Hall et al. v. State, 53 Ala. 463; Brown v. State, 108 Ala. 18, 18 So. 811; Cole v. State, 17 Ala. App. 488, 86 So. 124; Bodifield v. State, 86 Ala. 67, 5 So. 559, 11 Am.St.Rep. 20.
No exceptions were reserved to the action of the court in overruling appellant's motion for a new trial. This question, therefore, is not properly presented for review. Arnold v. State, 33 Ala. App. 146, 30 So.2d 587; Connell v. State, 33 Ala. App. 393, 34 So.2d 189.
A conviction for living in adultery, as denounced by Title 14, Sec. 16, Code 1940, cannot be sustained on proof of a single or occasional act of sexual intercourse, without more. There must be evidence also from which it can be reasonably inferred that the accused parties had an actual or implied agreement to continue the relationship. Bodifield v. State, supra.
In support of this essential element of proof it was admissible for the State to prove that the couple in question was seen in the city of Columbus, Mississippi, during the time of instant concern.
The defendant having testified as a witness in his own behalf, his credibility was subject to impeachment and this attack could be made by showing his general bad character. The trial judge ruled in harmony with this doctrine. Green v. State, 238 Ala. 143, 189 So. 763; Stover v. State, 24 Ala. App. 596, 139 So. 573.
The statement in the solicitor's argument, about which complaint is made, is not pointed out with sufficient detail. Pate v. State, 32 Ala. App. 365, 26 So.2d 214; White v. White, 33 Ala. App. 403, 34 So.2d 182.
It appears that the statement was withdrawn. In the state of the record, we do not have ample data to determine the merits of appellant's motion for a mistrial.
We come to consider the written instructions which were refused to appellant.
The following were covered by the oral charge or given written instructions: A, B, C, 11, 15, 16, 17, 23, 25 26, 29, 30, and 35. Title 7, Sec. 273, Code 1940.
Those numbered 5, 7, 10, 22, and 24 are not predicated on the evidence in the case. Edwards v. State, 205 Ala. 160, 87 So. 179; Nix v. State, 33 Ala. App. 603, 36 So.2d 452.
A conviction of the accused did not depend solely upon the testimony of a "single witness." Charge number 6 was therefore abstract. Baggett v. State, 33 Ala. App. 591, 35 So.2d 576; Powell v. State, 20 Ala. App. 606, 104 So. 551. This identical charge was approved in Duke v. State, 23 Ala. App. 29, 119 So. 864, and Dunn v. State, 19 Ala. App. 576, 99 So. 154. This court therein pointed out the circumstances under which the instruction should be given. These authorities do not control in the case at bar.
Charge number 8 is also abstract. There is no evidence in the record of any bias, prejudice, anger or ill will against the defendant on the part of any of the State's witnesses. Street v. State, 67 Ala. 87; Scott v. State, 15 Ala. App. 267, 73 So. 212.
Refused charges numbered 12 and 32 each have argumentative tendencies.
Charges 18 and 28 are identical. Each contains a typographical error, and their refusal is justified for this reason, if none other. Title 7, Sec. 273, Code 1940; Louisville N. R. Co. v. Lile, 154 Ala. 556, 45 So. 699.
Number 21 is not accurately and meaningfully worded. By the use of the clause "until the case is proven against him" there is left some uncertainty as to the meaning of the charge. Of course, it is not a question of proving "the case" against the defendant. The burden was on the State to prove each essential element comprised in the offense for which the accused was charged. This and nothing more.
Refused instruction number 27 is argumentative and has a tendency to mislead the jury. It fails to take into account any circumstantial evidence which may tend. to establish guilt. Salter v. State, 22 Ala. App. 86, 112 So. 538.
Charge 33 disregards any interest the defendant had in the outcome of the case. In contemplation of his interest the. jury was not bound, as a matter of law, to give the same weight and credence to the testimony of the defendant as to that of other witnesses. Hughes v. State, 213 Ala. 555, 105 So. 664; McKee v. State, 82 Ala. 32, 2 So. 451; Bullington v. State, 13 Ala. App. 61, 69 So. 319.
In the absence of any proof relating thereto, the jury is not authorized to assume that the character of the accused is either good or bad. Therefore, charge 34 was properly refused. Dryman v. State, 102 Ala. 130, 15 So. 433; Campbell v. State, 18 Ala. App. 219, 90 So. 43; King v. State, 19 Ala. App. 153, 96 So. 636; Steele v. State, 19 Ala. App. 598, 99 So. 745; Lovejoy v. State, 33 Ala. App. 414, 34 So.2d 692.
We have herein responded to each question presented by the record which in our view merits treatment.
It is ordered that the judgment of the circuit court be affirmed.
Affirmed.