Stewart v. State, 8 Div. 764

• Decision Date: 09 May 1950
• Docket Number: 8 Div. 764
• Citation: 46 So.2d 245,35 Ala.App. 288
• Parties: STEWART v. STATE.
• Court: Alabama Court of Appeals

Page 245

46 So.2d 245

35 Ala.App. 288

STEWART v. STATE.

8 Div. 764.

Court of Appeals of Alabama.

May 9, 1950.

Thos. C. Pettus, of Moulton, for appellant.

A. A. Carmichael, Atty. Gen., and Jas. L. Screws, Asst. Atty. Gen., for the State.

These charges were refused to defendant:

'A. I charge you gentlemen of the jury, that before you can find this defendant guilty in this case, you must believe from the evidence beyond a reasonable doubt, that this defendant had sexual intercourse with Lillie Hutchens within twelve months or within one year prior to the finding of the indictment in this case found in March, 1948.'

'3. I charge you gentlemen of the jury, that it is not sufficient that the evidence should cast a suspicion upon the defendant and Lillie Hutchens, but it must be shown beyond a reasonable doubt that they had intercourse.'

BRICKEN, Presiding Judge.

From a judgment of conviction for the offense of living in adultery or fornication, this appeal was taken.

Upon the trial in the court below numerous witnesses for the State, and also for the defendant, were examined. We have examined all of said testimony and in no single instance have we found any evidence tending to show any act of intimacy, or lewdness, between the parties who were indicted in this case. Therefore upon authority of the following enumerated cases, we hold that the trial court erred in overruling and denying defendant's motion for a new trial. There was error also in refusing the affirmative charge requested in writing by defendant. Bodiford v. State, 86 Ala. 67, 5 So. 559, 11 Am.St.Rep. 20; Rich v.State, 1 Ala.App. 243, 55 So. 1022; Copeland v. State, 12 Ala.App. 168, 67 So. 623; Garner v.State, 20 Ala.App. 268, 101 So. 506; Brown v.State, 22 Ala.App. 290, 115 So. 68; Gibson v. State, 22 Ala.App. 563, 117 So. 762; Brown v. State, 24 Ala.App. 385, 135 So. 641; Cornelison v. State, 24 Ala.App. 594, 139 So. 572; Brown, Bryant v. State, 31 Ala.App. 233, 14 So.2d 596, certiorari denied 244 Ala. 597, 14 So.2d 598.

In the above cases recited facts in several of the decisions disclosed a much stronger case for the State, than the facts of the case at bar.

The cursory oral charge of the court consisted of three short paragraphs. In said charge the court failed and refused to instruct the jury in any manner as to the constituent elements of the offense of living together in a state of adultery or fornication, and also refused two charges seeking to cure this omission. This was error.

In our case of Brown v. State, 24 Ala.App. 385, 135 So. 641, supra, the court said: 'Adultery consists of at least one act of illicit intercourse between persons of different sexes, where either is married, and an agreement, either expressed or implied, to continue the relation as opportunity offers and the parties desire. Rich v. State, 1 Ala.App. 243, 55 So. 1022. Occasional acts not indicating a prearranged continuation of the illicit intercourse, would not be living together, within the meaning of the statute. Boice v....