Jordan v. State, 8 Div. 172.

• Decision Date: 25 November 1941
• Docket Number: 8 Div. 172.
• Citation: 5 So.2d 110,30 Ala.App. 313
• Parties: JORDAN v. STATE
• Court: Alabama Court of Appeals

5 So.2d 110

30 Ala.App. 313

JORDAN v. STATE

8 Div. 172.

Alabama Court of Appeals

November 25, 1941

Rehearing Denied Dec. 16, 1941.

Appeal from Circuit Court, Lauderdale County; Chas. P. almon judge.

Bradshaw & Barnett, of Florence, for appellant.

Thos S. Lawson, Atty. Gen., and John J. Haynes, Asst. Atty. Gen for the State.

RICE Judge.

Appellant, a white man, and Mary Brewer, a negro woman, were indicted jointly; the offense charged being miscegenation, or that they did (essentially here) "live in adultery or fornication with each other." Code 1940, Title 14, Sec. 360.

Each was separately tried; each convicted; and each sentenced to serve imprisonment in the penitentiary for a term of two years.

This appeal, though from a judgment rendered some five or six months subsequent to the date of the judgment in the Mary Brewer case, may be considered a companion appeal to that of Mary Brewer v. State, 5 So.2d 112, likewise now pending in this court. And what we shall say here will serve to dispose of the appeal in the Mary Brewer case.

All the above for the reason that, as the counsel appearing here for each of the appellants mentioned,--said counsel being the same for each--state: "These are companion cases; * * * the points raised on the appeal are the same in each case" (with a single unimportant exception pointed out in their brief).

In the view we have taken it appears that we may omit a detailed statement of the testimony. It will suffice that we merely observe that the prosecution grew out of the fact that appellant Jordan, whose wife was seriously ill--in fact who was, as it turned out, on her death bed,--hired Mary Brewer to attend her, and moved the said Mary Brewer into the house with himself and his wife.

It would be futile, here, to comment on the fact that appellant Jordan was some seventy-two years of age; was shown to have borne a good character in the neighborhood in which he lived; and was described by at least one of the witnesses, in one of the cases, for the State, as an "old grey-headed man."

As the testimony is recorded in the bills of exceptions in the two appeals it made a case against each of the appellants that could be decided only by a jury.

But the judgments must be reversed. We will show why.

At the time of each of the trials--of Tom Jordan, and of Mary Brewer--Tom Jordan's wife was dead.

It was shown without dispute that Tom Jordan had known Mary Brewer for no longer than two years.

But the State's witness Mrs. Onice Graham--shown to have a poor character and reputation--was allowed to testify--over appellant's objection, with due exception being reserved--that, upon the occasion of Tom Jordan's moving Mary Brewer into his house, his wife said to him in Mary Brewer's presence: "I don't want you to move her in; that she didn't want him to move this colored woman in the house, and he told her, he said 'I love her better than anything in the world and I have been going with her sixteen years.' "

There were some other things the witness Mrs. Onice Graham was likewise allowed to narrate--as having been said at the time by Mrs. Tom Jordan--but they involve the same principle of the law of evidence, and only served to heighten the degree of prejudice which we think was worked to appellant's cause(s).

As for Mary Brewer, we think what Mrs. Onice Graham said Mrs. Tom Jordan said was but the rankest hearsay--and in nowise admissible.

As for Tom Jordan, our Supreme Court, said, almost a hundred years ago, that, on a trial of one for the offense of living in adultery (and the...