Crow v. State, 7 Div. 123

• Court: Alabama Court of Appeals
• Writing for the Court: CARR
• Citation: 35 Ala.App. 606,51 So.2d 268
• Decision Date: 13 March 1951
• Docket Number: 7 Div. 123
• Parties: CROW v. STATE.

Page 268

51 So.2d 268 35 Ala.App. 606 CROW
v.
STATE. 7 Div. 123. Court of Appeals of Alabama. March 13, 1951.

Page 269

Walter J. Merrill and Knox, Jones, Woolf & Merrill, all of Anniston, for appellant.

Si Garrett, Atty. Gen., and Wm. N. McQueen, Asst. Atty. Gen., for the State.

CARR, Presiding Judge.

This case involves a prosecution for desertion and nonsupport. Title 34, Sec. 90, Code 1940.

The first count of the complaint charges nonsupport of the defendant's wife and the second count charges nonsupport of defendant's minor child.

There was a general verdict of guilt.

The appellant's request for the general affirmative charge as to each count of the complaint was refused. In this state of the record the general verdict cannot be referred to a good count in the complaint. Jones v. State, 236 Ala. 30, 182 So. 404; Ross v. Washington, 233 Ala. 292, 171 So. 893; Jackson v. State, 33 Ala.App. 42, 31 [35 Ala.App. 607] So.2d 514; Moore v. State, Ala.App., 44 So.2d 789.

To sustain the allegation under count one of the complaint, the State relied solely on proof that there was a ceremonial marriage between the accused and his alleged wife.

In this aspect the woman in question testified that she and the appellant left Anniston, Alabama and traveled by taxi to some place in the State of Mississippi. At the latter destination they secured a license and were married by a mininster of the gospel. After spending the night together they returned to Anniston. The lady wasunable to give the county seat in Mississippi. Neither could she remember the name of the preacher who performed the ceremony.

The accused testified that he did not make the trip to Mississippi, and he denied that he ever entered into a ceremonial marriage with the prosecuting witness. He supported his claim by other evidence.

Without doubt as to this manner of marriage the evidence posed a jury question.

In his oral charge the trial judge instructed the jury that it was authorized to consider the doctrine of common law marriage in addition to the question of ceremonial marriage. The appellant excepted to the portion of the charge relating to the common law marriage instructions, and also requested some written charges in which effort was made to confine the submitted issues solely to the inquiry of whether or not there was a ceremonial marriage.

In the case of DeGraaf v. State, 34 Ala.App. 137, 37 So.2d 130, 135, we held that 'A defendant is entitled to be tried upon the...