Linton v. State

• Decision Date: 27 January 1890
• Parties: LINTON v. STATE.
• Court: Alabama Supreme Court

7 So. 261

88 Ala. 216

LINTON v. STATE.

Supreme Court of Alabama

January 27, 1890

Appeal from circuit court, Pike county; JOHN P. HUBBARD, Judge.

Indictment against Martha Linton. The indictment charged "that John Blue, a negro man, and Martha Linton, a white woman, did intermarry, or live in adultery or fornication with each other, against the peace," etc. The court refused to give the following charges requested by defendant: "(1) If the jury believe the evidence, they must find the defendant not guilty of felonious adultery, as charged in the indictment. (2) In adultery cases it is permissible for the state to show that the female defendant is a lewd woman; that her character for chastity is bad. (3) If the jury believe the evidence, they must find the defendant not guilty. (4) If the evidence leaves in the mind of the jury a doubt whether John Blue is a negro or a mulatto, they must find the defendant not guilty. (5) The evidence must not only show beyond a reasonable doubt that John Blue and the defendant had sexual intercourse with each other, but also that there was an agreement between them to keep up or continue such intercourse. (6) If the circumstances in evidence conduce as strongly to show that the act of sexual intercourse was committed with George Blue as with John, and the jury have a doubt as to which, it is their duty to acquit; or, unless the jury are satisfied from the evidence beyond a reasonable doubt that the sexual intercourse, with an agreement to continue, was committed with John Blue, they must acquit. (7) The state must prove beyond a reasonable doubt that John Blue is a negro; and, if the evidence shows that he is a mulatto then the defendant is not guilty. (8) It is not sufficient to convict to show that the defendant had one act of sexual intercourse with John Blue without more, but the evidence must show beyond a reasonable doubt that there was an agreement between the two to continue that illicit relation. (9) It is competent for the jury to look to the fact, if it be proved, that the defendant was at the house which was the home of two men, one of whom (John Blue) was married; and if they have a doubt as to which one of the two the defendant had sexual intercourse with, if with either, then they must acquit her."

W L. Martin, Atty. Gen., for the State.

MCCLELLAN J.

The indictment in this case sufficiently charges the crime of miscegenation against the appellant, a white woman, and John Blue, a negro man. Pace v. State, 69 Ala. 231; Code § 4189.

There was no error in allowing the state to make profert of the person of John Blue to the jury, in order that they might determine by inspection whether he was a negro, as charged in the indictment. There had been a severance in the trials of the appellant and Blue, and evidence of this character is cearly competent to show sex, (White v. State, 74 Ala. 31;) age, (State v. Arnold, 13 Ired. 184;) personal resemblance, (State v. Woodruff, 67 N.C. 89; State v. Britt, 78 N.C. 439;) color and race, ( Garvin v. State, 52 Miss. 207; Gentry v. McMinnis, 3 Dana, 385;) and many like facts in regard to the personality of the defendant himself, or of any other individual involved in the issue, (Whart. Crim. Ev. § 311 et seq.)

Clause 5, § 2, of the Code, defines the terms "negro" and "mulatto," when and as used in the Code, and makes the former include the latter, and the latter to mean "a person of mixed blood, descended on the part of the father or mother from negro ancestors to the third generation inclusive, though one ancestor of each generation may have been a white person." Interpreted in the light of these definitions, section 4018, for a violation of which the appellant was convicted, may be read as if the words "or the descendants of any negro," etc., to the word "intermarry," were omitted, since the preceding word, "negro," embraces all descendants of a negro to the...