Brown v. State

• Decision Date: 18 December 1895
• Citation: 108 Ala. 18,18 So. 811
• Parties: BROWN v. STATE.
• Court: Alabama Supreme Court

18 So. 811

108 Ala. 18

BROWN v. STATE.

Supreme Court of Alabama

December 18, 1895

Appeal from circuit court, Baldwin county; William S. Anderson Judge.

Nicholas Brown was convicted of living in adultery with Caroline Barado, and appeals. Reversed.

On the trial of the cause, as is shown by the bill of exceptions the state introduced as a witness one Waukine Pose, who testified that he knew the defendant and Caroline Barado and Phillip Barado, who was the husband of Caroline Barado. This witness was asked, "Do you know the time Caroline Barado left in the boat?" The defendant objected to this question, because it called for immaterial and irrelevant evidence. The court overruled the objection, and the defendant duly excepted. In answer to that question, the witness stated that he knew when Caroline Barado left in the boat; that the defendant and Caroline Barado went from his wharf in Baldwin county, Ala., in defendant's boat, in the summer of 1895, going in the direction of Mobile, Ala. The defendant moved to exclude this testimony, on the ground that it was immaterial, irrelevant, and inadmissible, and duly excepted to the court's overruling his motion. The state introduced as a witness one Frank Grass, who, upon being told by the solicitor to tell what he knew about the case, testified as follows: "Mrs. Caroline Barado came to witness' house at Point Clear, Baldwin county, Ala and in about five minutes thereafter defendant came in, and said to said Caroline, 'Let's go.' That said Caroline replied, 'I don't know what I am going to do.' That defendant then asked witness to take said Caroline on the beach, and that witness replied, 'No sir; I don't want any trouble in my house.' That said Caroline then sent one Fred, known as 'Dutch Charlie,' on the beach to see if he could see Phillip Barado, and that said Fred came back and said 'No.' That defendant then said to Caroline, 'Let's go now; we have a fair wind.' That witness did not see Caroline Barado and defendant again before he saw them in court on trial for this cause." The defendant objected to the testimony of this witness, and moved to exclude it from the jury, on the ground that it was immaterial, irrelevant, and inadmissible. The court overruled the objection and motion, and to this ruling the defendant duly excepted. James W. O'Neil, as a witness for the state, testified as follows: That he knew the defendant and Caroline Barado; that he saw the defendant and Caroline Barado and her two children at the wharf at Daphne, Baldwin county, Ala., late in the afternoon, and there was a heavy squall coming up, and that the witness said to defendant, "Mrs. Barado had better stop at my house," to which the defendant replied that he had a comfortable cabin on the boat, and could keep her comfortable in there. That witness looked out early the next morning towards the wharf to see if he could see anything of the defendant and Mrs. Barado, and that he saw the boat of defendant lying at anchor a short distance from the wharf, and in the cabin he saw the heads of four persons, a man, a woman, and, apparently, two children. The defendant moved to exclude this testimony from the jury, on the ground that it was immaterial, irrelevant, incompetent, and inadmissible. The court overruled the motion, and the defendant duly excepted. The state introduced the showing as to what the sheriff of Mobile county and one of his deputies would testify if present at the trial. The testimony set out in said showing was as follows: "That on September 26, 1895, they arrested Caroline Barado and Nicholas Brown under a warrant issued by the judge of the county court of Baldwin county, Ala., under a complaint charging them with living together in adultery. That they arrested Caroline Barado at a house on Little Dauphin Island, Mobile county, Ala., while she was cooking breakfast at the house were Nicholas Brown resided. That said house had only one bed in it, which was a double bed, and had two pillows on it. That they arrested Nicholas Brown where he was fishing in the neighborhood of said house in said county. That said Caroline Barado and said Nicholas Brown, on being permitted to get some clothing to take with them before leaving the place, each took clothing, including underclothing, from the same box under the bed in said house. That when the witnesses went to said house and arrested said Caroline Barado there was a woman's nightgown on or near the bed above described." The defendant objected to each separate portion of the testimony of these witnesses, as contained in the showing, and the whole of the testimony, as stated therein, and moved to exclude the testimony on the ground that such testimony was irrelevant, incompetent, and inadmissible. The court overruled each separate objection and motion, and to each ruling the defendant separately excepted. This was all the evidence introduced by the state, and the defendant moved the court to exclude all of such evidence, which motion the court overruled, and the defendant excepted. Thereupon the defendant moved the court to discharge him. The court overruled this motion, and the defendant duly excepted. The defendant introduced evidence tending to show that he was not guilty as charged in the indictment; that he had been employed by Phillip Barado, the husband of Caroline Barado, and that, when he left the employment, Caroline Barado requested him to take her and her two children to Mobile, which the defendant did; that afterwards, at the request of said Caroline Barado, he took her to Little Dauphin Island, in Mobile county, Ala., where she was employed by the defendant to cook, clean up defendant's house, and wash for him. In the court's general charge to the jury, among other things, he instructed them as follows: "If the defendant and Caroline Barado agreed in this county to go to Mobile county, Ala., and live in the state of adultery, and went off from Point Clear under the circumstances described by the witnesses in this case, and then went together to Mobile county, and lived in the state of adultery, and such living together was a consummation of the previous agreement, he would be guilty." To this portion of the court's general charge the defendant duly excepted. The defendant requested the court to give to the jury the following written charge, and duly excepted to the court's refusal to give the same: (a) "The court charges the jury that before the jury can convict the defendant they must be satisfied, to a moral certainty, not only that the proof is consistent with the defendant's guilt, but that it is wholly inconsistent with every other rational conclusion; and unless the jury are so convinced by the evidence of defendant's guilt that they would each venture to act upon that decision in matters of the highest concern and importance to his own interest, then they must find the defendant not guilty."

Chas. L. Bromberg, Jr., for appellant.

Wm. C. Fitts, Atty. Gen., for the State.

BRICKELL C.J.

Adultery "the voluntary sexual intercourse of a married...