Stewart v. State

• Decision Date: 18 April 1887
• Citation: 64 Miss. 626,2 So. 73
• Court: Mississippi Supreme Court
• Parties: MARK STEWART AND HATTIE BROWN v. THE STATE

2 So. 73

64 Miss. 626

MARK STEWART AND HATTIE BROWN v. THE STATE

Supreme Court of Mississippi

April 18, 1887

April 1887

APPEAL from the Circuit Court of Yazoo County HON. T. J. WHARTON Judge.

In 1884 Mark Stewart (white) and Hattie Brown (colored) were jointly indicted for unlawful cohabitation and living together in a state of fornication.

On the trial each made an application for a severance, which was denied, and they excepted. The testimony for the State tended to show that within two years prior to the time of finding the indictment they had been seen in bed together, that for five or six years they lived near each other, and that during that time Mark Stewart was frequently seen at the house of Hattie Brown and in her bed; that he was at her house often and especially on Sundays; that Hattie Brown had two mulatto children whom Mark Stewart had been heard to call his children. The State offered evidence to show acts of criminal intercourse between the defendants fifteen or twenty months after the finding of the indictment. This evidence was first admitted by the court and afterward excluded. The evidence for the defendant tended to contradict most of the material testimony for the State.

The district attorney in his argument appealed to the jury to discountenance miscegenation and denounced the same. This was excepted to by the defendants.

The jury found the defendants guilty, and from the judgment against them they appealed.

Affirmed.

J. C Prewett, for the appellants.

1. The motion for a severance should have been granted. While it is ordinarily within the discretion of the court to grant or refuse a severance, this was a case in which a severance should certainly have been granted. The defendants should have been tried separately. And we say this for the reason that trying them together resulted greatly to the prejudice of defendants. To compel the defendants to sit together before the jury and to make a common defense associated them in the minds of the jury--caused the jury to look upon them as joint offenders--especially as the only charge against them was in effect that they were cohabiting, that is, associating, together.

In the case of the United States v. Marchant, 12 Wheat. 486, Judge Story, delivering the opinion of the court, said: "In our opinion it (a severance) is a matter of sound discretion, to be exercised by the court with all due regard and tenderness to prisoners, according to the known humanity of our criminal jurisprudence."

2. This case appears to me to be less strong against the defendants than the Granberry case. 61 Miss. 440.

3. "It is said that all the evidence of facts after the finding of the indictment was excluded by his Honor. How can evidence be excluded from the mind that has once received it? I protest against any such practice--the admittance of palpably improper testimony, and then attempting to avoid the commission of reversible error by telling the jury that they need not pay any attention to it.

T. H. Campbell, for the appellants, argued the case orally.

T. M. Miller, Attorney General, and W. R. Harper, for the State.

1. The question of severance was wholly within the discretion of the court by our statute. There is nothing in the argument of counsel for the appellant to show in any degree an abuse of this discretion. It may be admitted that it was in some degree prejudicial to appellants to be brought face to face on their trial, but if we admit that this single fact was sufficient to require a severance it would establish the rule that in every trial of parties for cohabitation a severance is a matter of right. In other words, there is nothing peculiar to this particular case, but the same prejudice would exist in all cases of like kind.

2. The record will show that evidence of subsequent conduct of appellants was only admitted on condition that a continuation of the unlawful relations would be shown from the date of the indictment. Had this been shown the evidence would clearly have been admissible. Bishop on Statutory Crimes, § 681 and § 682, and cases there cited.

3. It seems to us that the only serious question in this case is the sufficiency of the evidence.

An act of sexual intercourse within the time covered by the indictment is clearly shown. The only question then is, was there a cohabitation, a living together, secretly or otherwise?

It has been held in Alabama, 14 Ala. 608, that in a case where a married man visits and remains with a lewd woman one night in every week for seven months at her residence, half a mile...