Dodson v. State, 6 Div. 115

• Decision Date: 15 December 1936
• Docket Number: 6 Div. 115
• Parties: DODSON et al. v. STATE.
• Court: Alabama Court of Appeals

171 So. 384

27 Ala.App. 286

DODSON et al. v. STATE.

6 Div. 115

Court of Appeals of Alabama

December 15, 1936

Appeal from Circuit Court, Lamar County; Ernest Lacy, Judge.

Hollis Dodson and Clara Hutcherson were convicted of living in adultery or fornication, and they appeal.

Affirmed.

O.E Young, of Vernon, and W.H. Hogan, of Fayette, for appellants.

A.A Carmichael, Atty. Gen., and Wm. H. Loeb, Asst. Atty. Gen for the State.

BRICKEN Presiding Judge.

The two appellants were jointly indicted, charged with the offense of living together in a state of adultery or fornication. The indictment was regular in all respects and was returned by the grand jury and duly filed in open court on August 21 1935.

At the next succeeding term of the court, on, to wit, February 20, 1936, the two defendants were arraigned and each of them, in answer to the indictment, interposed their plea of not guilty. They were jointly tried, both were adjudged guilty as charged, and from the judgment of conviction this appeal was taken.

We have read and carefully considered the entire evidence adduced upon the trial of this case in the court below as transcribed in the record.

Upon this appeal the two principal insistences of error are: (1) That the court erred in refusing to defendants the affirmative charge requested in writing; and (2) the court erred in overruling defendants motion for a new trial.

As to the first proposition, supra, it is insisted that this court should accord no weight, and give no credence to the testimony of the two principal State witnesses, Postelle Bobo, and his wife, Mrs. Bobo; for the manifest reason of their bias, ill will, and enmity towards the defendants. And in this connection, it is further insisted that the evidence in this case, without dispute, conclusively shows that the said two witnesses feel and entertain against the two defendants rancor, hatred, aversion, antipathy, repugnance, ill will, malice, and malevolence, as a consequence of which no probative force should be accorded to their testimony. Appellants' earnest counsel must, or should know, that this court has no such province. The testimony of said witnesses was properly allowed by the court, and having been admitted, the question of its verity and probative force was for the jury to consider and determine. This duty rested exclusively upon the jury who tried this case in the court below. The trial court had no authority to hold that this testimony was unworthy and could not be believed, nor is there any rule of law which would authorize or empower this court to so hold. Therefore, the action of the lower court in refusing the affirmative charge must be sustained. In our case of Cruse et al. v. State, 26 Ala.App. 81, 153 So. 662, 663, this court said:

"It is insisted that each of the state witnesses was admittedly biased and entertained ill will and malice towards the defendants while testifying against them on the trial in the court below. This insistence appears to be borne out by the record of the proceedings, but this is a matter for the jury to consider for it is the sole duty of the jury to accord such weight or probative force to the evidence as they may deem right and proper. It is not within the province of this court, on appeal, to say whether or not the testimony upon which these convictions rested was false or unworthy of credence."

As to the second proposition (2), supra, that is to say the action of the court upon defendants' motion for a new...