4 Div. 723.
June 21, 1921. Rehearing Denied July 19, 1921.
Appeal from Circuit Court, Henry County; H.A. Pearce, Judge.
Hint Lewis was convicted of felonious fornication, and he appealed. Affirmed.
Charge 1, refused to the defendant, is as follows:
If the jury is not satisfied that the defendant had illicit intercourse with Bess Adams, with the agreement that they would continue such intercourse, then they must acquit the defendant.
Lee Tompkins, of Dothan, for appellant.
The charges requested should have been give. 104 Ala. 56, 16 So. 7; 10 Ala. App. 11, 64 So. 516; 168 Ala. 127, 53 So. 283; 156 Ala. 175, 47 So. 100. The court was in error in its rulings on the evidence. 52 Ala. 24; 20 Ala. 55. The defendant was entitled to the affirmative charge. 108 Ala. 18, 18 So. 811; 48 Ala. 269; 53 Ala. 463.
Harwell G. Davis, Atty. Gen., for the State.
Brief of counsel did not reach the Reporter.
The appellant, Hint lewis, was tried under an indictment which charges that he lived in a state of felonious adultery or fornication with Bess Adams, was convicted and sentenced to the penitentiary for a term of not less than two nor more than three years. The evidence tended to show that the appellant was an unmarried white man, and Bess Adams an unmarried negro woman, she living on appellant's place and was the mother of five children; that the appellant visited her home once or twice a week; that he was seen to care for and put one of the children to bed, and that appellant stated the child was his; that Bess Adams lived about 400 or 500 yards from appellant's home; that she was black and her oldest child light-colored or white. These facts and circumstances were all properly submitted to the jury; they being such facts and circumstances as would tend to show illicit relations between the parties. Hill v. State, 137 Ala. 71, 34 So. 406; Wright v. State, 108 Ala. 60, 18 So. 941.
Evidence having been introduced which tended to show illicit relations between the parties within the time covered by the indictment, it was competent to show other facts and circumstances, anterior thereto, which tended to show illicit relationship between the parties, these being permissible for the purpose of throwing light on their acts during the time covered by the indictment. Smith v. State, 16 Ala. App. 79, 75 So. 627.
As has been stated many times before, it is not necessary, in order to make out a charge for living in adultery or fornication, for the state to offer witnesses who saw the parties actually engage in sexual intercourse, but to justify a conviction on such a charge the evidence as to the facts and circumstances, the acts and conduct of the parties, must be such that the jury can say they are satisfied beyond a reasonable doubt that there was an act of illicit intercourse and an agreement between the parties, either express or implied, that they would continue the relation when the occasion offered or they so desired. There was sufficient evidence to submit this case to the jury, and the refusal of the affirmative charge was properly refused. Cole v. State, 17 Ala. App. 488, 86 So. 124.
There was no error in sustaining the state's objection to the question. "Did you see any white men there at Bess Adams' house, during the time you have testified about, other than Hint Lewis?" The question is not intelligible. Neither was there error in sustaining the state's objection to the question, "Did you ever see other white men have the children in their arms at Bess Adams' house?" This question does not appear to be in reference to the child that appellant is charged with being the father of, or the children of Bess Adams.
The other written charge, an unnumbered one, was properly refused. It is substantially covered by the court's oral charge, and the finding of the jury is not directed to be predicated on the evidence in the case.
We find no error in the record and the judgment is affirmed.