Banks v. State

• Decision Date: 23 June 1892
• Parties: BANKS v. STATE.
• Court: Alabama Supreme Court

11 So. 404

96 Ala. 78

BANKS v. STATE.

Supreme Court of Alabama

June 23, 1892

Appeal from criminal court, Pike county; WILLIAM J. PARKS, Judge.

Julia Ann Banks was convicted of living in adultery with one John Phillips, and appeals. Reversed.

On the trial the state introduced, as a witness in its own behalf one Emma Perry, who testified that she was married to the said John Phillips in August, 1890, and that they lived together as man and wife until some time in December, 1890 when they separated; that some time in April, 1891, the said John Phillips and the defendant, Julia Ann Banks, were said to have been married in Ozark, and that after that time they lived together as man and wife for some months, and then separated, and were living apart at the time of the trial. On cross-examination, the defendant asked this witness, Emma Perry, whether she had ever been married before she was married to the said John Phillips. The state objected to this question, the court sustained the objection, and the defendant duly excepted. The state introduced as a witness one Amanda Parker, who testified that defendant had stated to her that she and said John Phillips were married at Ozark but that when she, the defendant, found out that said John Phillips had not been divorced from his wife, she separated from him. On cross-examination the defendant asked this witness whether Emma Perry had a husband before she was married to said John Phillips. On objection by the state to this question, the court sustained the objection, and the defendant duly excepted. The defendant introduced as witness in her behalf the said John Phillips, who testified he and defendant were married at Ozark. Upon the defendant asking this witness to state the circumstances connected with his marriage to defendant, the state objected, the court sustained the objection, and the defendant duly excepted. The defendant then asked the said John Phillips "whether Emma Perry had a husband before he (witness) was married to said Emma Perry, and, if so, was he alive at the time of their marriage? The state objected to this question, which objection the court sustained, and defendant duly excepted. The defendant then asked the witness the cause of his and defendant's separation. But, on objection by the state the court refused to allow such question, and defendant excepted. The court, in his general charge, instructed the jury "that a living together of a man and woman openly and notoriously as husband and wife, who were not legally married, would constitute adultery, in the meaning of the law." And again, that "there is no evidence showing they were married at Ozark, except the statement of John Phillips, who claimed to be the husband, and perhaps some declarations on the subject by other witnesses, as to what defendant had said about it." To each of these portions of the general charge the defendant separately excepted, and also excepted to the giving of the following charge by the court at the written request of the state: "If the evidence showed beyond a reasonable doubt that the defendant and John Phillips lived together as man and wife, and that their marriage was unlawful and void, on account of John Phillips' former marriage with Emma Perry, then the burden is on the defendant to show that she had no knowledge of...