Brown v. State

• Decision Date: 10 January 1928
• Docket Number: 5 Div. 673
• Citation: 22 Ala.App. 290,115 So. 68
• Parties: BROWN et al. v. STATE.
• Court: Alabama Court of Appeals

115 So. 68

22 Ala.App. 290

BROWN et al. v. STATE.

5 Div. 673

Court of Appeals of Alabama

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.

In prosecution for adultery refusing instruction on reasonable doubt from any part of evidence held error.

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.

Charlie C. McCall, Atty. Gen., for the State.

SAMFORD J.

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 (Ala.App.) 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...