Lawson v. State

• Decision Date: 13 January 1948
• Docket Number: 6 Div. 587.
• Citation: 33 So.2d 388,33 Ala.App. 343
• Parties: LAWSON v. STATE.
• Court: Alabama Court of Appeals

33 So.2d 388

33 Ala.App. 343

LAWSON v. STATE.

6 Div. 587.

Alabama Court of Appeals

January 13, 1948

Elliott & Petree, of Jasper, for appellant.

A A. Carmichael, Atty. Gen., and Francis M. Kohn, Asst. Atty Gen., for the State.

HARWOOD, Judge.

At his trial before the Circuit Court of Walker County, without a jury, this appellant was found guilty under an indictment charging him with living in a state of adultery or fornication with Elizabeth Turner. As punishment the court imposed a fine of $100 and sentenced appellant to serve six months at hard labor for Walker County.

The evidence introduced by the State was directed toward showing that Jake Turner and Elizabeth Turner were married some time in 1943, after Turner had entered the armed services. They established a small home some two miles east of Jasper, and Elizabeth continued to live in this house during her husband's absence in the army. Their marital career was apparently stormy. On July 3, 1945, Turner returned early in the morning to Jasper on furlough from Camp Butler, North Carolina. Between 6:30 and 8:30 o'clock on that morning he went to his house in a taxi, for the purpose of seeing his wife about a divorce. He entered through a back door which was partially open and found his wife and the defendant in bed together, asleep, and clothed only in their underclothing. He observed them a moment, and then left. This witness testified he has seen the defendant and his wife together on several occasions since that time.

Mrs Nellie Garrett, a sister of Jake Turner, testified that she and Elizabeth Turner had lived together for awhile after Turner had entered the army. These two had a falling out over some clothes and Mrs. Garrett moved out. She returned to get some of her things at around 8:00 o'clock on a morning in May 1945, and claims that on this visit she found appellant and Elizabeth Turner in bed together. She also testified that several times after this she saw the defendant and Elizabeth Turner pass her new residence in a car, but that they were accompanied by Elizabeth's sister and another man.

C. W. Harbison, a deputy sheriff, testified that he had gone out to the Turner house in the summer of 1945, he could not remember the month, to get some of Jake Turner's things, and on the occasion of this visit he had found the defendant there. He also had observed the defendant and Elizabeth Turner together on the streets of Jasper, and on the highway. He also saw them together at Linn's Park when he was called there to quell a disturbance caused by the defendant. Another woman and two men were with the defendant and Elizabeth Turner on this occasion.

Joe Moore, another Deputy Sheriff, testified he had seen the defendant and Elizabeth Turner together several times at different places during the summer of 1945. They were in an automobile, with several other people, that he searched one night near Sumiton, and he had also seen them in an automobile in Birmingham together, when no other people were with them.

For the defense Elizabeth Turner denied categorically that she had ever been in a bed with the defendant, or associated with him, or been accompanied by him at any time. She further testified that the defendant had done a few days work on her mother's house which was about 200 yards from her own house, but was not engaged in this work except in the daytime; that unless her sister-in-law, prior to their falling out, or her sister Audrey thereafter, could stay with her she spent the nights in her mother's house.

Mrs. Victoria Day, mother of Elizabeth Turner, gave testimony tending to corroborate Elizabeth's testimony.

The defendant testifying in his own behalf likewise categorically denied any misconduct with, or association with Elizabeth Turner.

On cross-examination, and over his objection and exception, he testified that he had been convicted of bigamy in the Circuit Court of Walker County.

One of the foremost cases of this State discussing the law and required degree of proof essential to sustain a conviction for violation of Section 16, Title 14, Code of Alabama 1940, or its precursors, is Bodiford v. State, 86 Ala. 67, 5 So. 559, 11 Am.St.Rep. 20. In that case Chief Justice Stone wrote:

'To constitute a living in adultery within the statute (Code 1886, § 4012, [Code 1940, Tit. 14, § 16]) a single or occasional act, without more, is not sufficient. There must be continuation, or an agreement for continuation, coupled with one or more acts, before it can be affirmed that the relation is established. It is a crime of darkness and secrecy, and hence always difficult of direct proof. On this account it is held that when acts and complicating circumstances are proved, it becomes largely a question for the jury to determine whether there was in fact such continuation as amounted to a living together, or, what is equivalent to it, a mutual, guilty consent, express or implied, for such continuation. And the parties need not occupy the same dwelling, if there was a mutual expectation and...