McAlpine v. State

• Decision Date: 11 February 1898
• Citation: 23 So. 130,117 Ala. 93
• Parties: MCALPINE ET AL. v. STATE.
• Court: Alabama Supreme Court

23 So. 130

117 Ala. 93

MCALPINE ET AL. v. STATE.

Supreme Court of Alabama

February 11, 1898

Appeal from city court of Talladega; John W. Bishop, Judge.

Will McAlpine and Lizzie White were convicted of miscegenation and living in adultery with each other, and appeal. Reversed.

The evidence for the state tended to show that Lizzie White, who was a white woman, lived in a house of two rooms with her mother; that in that house there also lived a negro man named Joe Gantt and his four children, and that only one room of the house was occupied by all of the residents; that Will McAlpine lived in Talladega near the negro college, and that the house where Lizzie White lived was in a suburb of Talladega known as Needmore; that Will McAlpine had been seen numbers of times going to the house occupied by Lizzie White late in the evening and returning from the house of Lizzie White early in the morning; that he had been seen eating with the defendant Lizzie White in her house, and that they had been seen in bed together. Several witnesses testified to these different facts.

The witnesses examined by the defendants were introduced for the purpose of impeaching the several state witnesses, and each of these witnesses so introduced by the defendants testified that they knew the general character of the several state witnesses inquired about, in the community and which each respectively lived, and that the character of each of said witnesses was bad, and that the character of each of said witnesses for truth and veracity was bad, and that from such knowledge of the character of each of such witnesses they would not believe them on oath. There was other evidence introduced in behalf of the defendants tending to contradict the testimony of some of the witnesses for the state. The state, in rebuttal, introduced several witnesses to sustain the testimony of the witnesses which had been examined in behalf of the state; and each of such witnesses testified that the character of the witnesses for truth and veracity and their general character was good.

Ed Lewis was introduced as a witness by the state and testified that he knew the general character of C. Bishop, and that it was good; that he had heard people discuss his character, but could not tell the jury any single person that he had heard discuss it; that what he had heard people say was that "he was a before-the-war negro"; and that his estimate of said character was based on what he had heard others say, and what he knew of him himself. The defendants separately and severally moved to exclude the testimony of this witness, on the ground that his knowledge of the character of C. Bishop was insufficient. The court overruled this motion, and the defendants separately and severally excepted. There were several rulings of the court upon the evidence to which exceptions were reserved. These rulings are sufficiently set forth in the opinion.

Upon the introduction of all the evidence, the defendants requested the court to give to the jury the following written charges, and separately excepted to the court's refusal to give each of them as asked: "(A) The court charges the jury, that if they believe from the evidence, that Will McAlpine lived with his mother, near the college, and that Lizzie White lived with her mother, in Needmore, and that they did not live together in adultery or fornication, they should acquit the defendant; and that before the defendants or either of them, could be convicted, the evidence must satisfy their minds beyond a reasonable doubt, that the defendants did more than occasional acts of illicit or criminal intimacy. (B) The court charges the jury, that even should they be reasonably satisfied from the evidence that defendant, Lizzie White, was engaged in keeping or helping to keep a house of prostitution, where negro men had sexual intercourse with white women, or with said Lizzie, and that defendant Will McAlpine went to such house on different occasions, and had sexual intercourse with said Lizzie White still these facts alone would not be sufficient to warrant the jury in convicting either defendant under this indictment. (C) A woman who keeps or helps to keep a house of prostitution is not guilty of living in adultery, as charged in this case, with a man who at such house merely has occasional acts of criminal sexual intercourse with such woman; and if such facts constitute all that is shown beyond a reasonable doubt in this case, then no matter if the jury are satisfied of such facts beyond a reasonable doubt, the jury, under their oaths, should acquit the defendant. (D) The keeping of a house of prostitution is an offense against the laws of Alabama, for which a defendant may be indicted and convicted, but these defendants are not charged with that offense in this case, and cannot be convicted upon this trial upon evidence which only reasonably satisfies the jury beyond a reasonable doubt of the keeping of such house of prostitution, notwithstanding the evidence may further so satisfy the jury that at such house defendants were guilty of different acts of criminal sexual intercourse."

Upon the return of the jury into the court room from the jury room after their deliberation, the court asked the jury if they had agreed upon a verdict. The foreman of the jury replied that they had, and handed to the clerk a paper from which the clerk read the verdict, finding the defendants guilty as charged in the indictment, which verdict was signed by one of the jurors as foreman. Thereupon the defendants demanded that the jury be polled. During the polling of the jury under the order of the court, the clerk of the court asked M. W Beavers, one of the jurors, the following question: "Mr Beavers, is this your verdict?" To this question Mr. Beavers answered: "I submitted to it." Thereupon the court asked said Beavers: "Mr. Beavers, did you acquiesce in this verdict and agree to it?" The said Beavers replied: "I did." The defendants then challenged said verdict and objected to its reception by the court. The court refused to sustain said challenge and overruled the objection, and to this ruling the defendants severally and separately excepted.

Newman & Webb and Cecil Browne, for appellants.

Wm. C. Fitts, Atty. Gen., for the State.

HARALSON J.

1. The witness for the state, Alice Madison, was asked, if she had had any conversation with defendant, Lizzie White, within the last twelve months; when and where it was; who, if any one was present; the circumstances of the conversation, and what was said? The defendants' counsel objected, on the ground that both defendants were not shown to be present, and because it called for evidence that was illegal, irrelevant and incompetent. The court stated to the jury, that any such conversation would be treated in its effect, as to Lizzie White alone, and overruled the objection. The witness answered, stating, that Lizzie White, at the well, between her own and the witness' house, in February, 1897, had a conversation with her, in which Lizzie told her "that she did not have to work; that her fellow, Will McAlpine, kept her up; that Will was her fellow, and she was Will's woman." The defendants then moved to exclude the answer, on the grounds, that Will McAlpine was not present at the conversation, and it was not admissible as to him, and because the evidence was incompetent, irrelevant and illegal,...