Owens v. State

• Decision Date: 28 January 1892
• Parties: OWENS ET AL. v. STATE.
• Court: Alabama Supreme Court

10 So. 669

94 Ala. 97

OWENS ET AL. v. STATE.

Supreme Court of Alabama

January 28, 1892

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

Joe Owens and Prudence Owens were convicted on the charge of living together in adultery or fornication. The court charged the jury as follows: "Although the facts in this case might show the offense of bigamy by the defendant Prudence you can find her guilty of adultery, if you believe beyond a reasonable doubt that she is guilty of adultery. This is not a case where the misdemeanor is merged in the felony, even if you should believe she was guilty of bigamy." The court refused the following charges, requested by defendants "(1) Before the jury can find the defendants guilty in this case, they must find beyond all reasonable doubt, from the evidence, that the defendant Prudence Owens was married to the man Beatty. A mere adulterous intercourse with him, no matter for how long continued, will not be sufficient. (2) The court charges the jury that, if they believe from the evidence that it was understood by the defendants that Beatty and the defendant Prudence were not in fact married, they must find for the defendants." Defendants appeal. Affirmed.

Davidson & McGowan, for appellants.

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

WALKER J.

The defendants, Joe Owens and Prudence Beatty, were convicted on the charge of living together in a state of adultery or fornication. The cohabitation was not denied, but the defendants claimed that they had been duly married. There was evidence tending to show that at the time of their alleged marriage the female defendant was the wife of one Beatty. Evidence was admitted without objection to show that the defendant Prudence and the man Beatty lived in the same house as husband and wife, treated each other as husband and wife, and so called each other. Against the objection of the defendants a witness was permitted to state that while the defendant Prudence and the man Beatty lived together a child who lived with them called the man Beatty father, and that the man Beatty called the defendant Prudence his wife. This evidence was admissible against the defendant Prudence. Marriage may be proved by the admissions and declarations of the parties; and the man's recognition of himself as the parent of the woman's child, and the fact that he allows the child to call him father, are circumstances tending to show marriage. Williams v. State, 54 Ala. 131; Green v. State, 59 Ala. 69; 2 Greenl....