Wilson v. State

• Decision Date: 10 June 1924
• Docket Number: 1 Div. 527.
• Citation: 101 So. 417,20 Ala.App. 137
• Parties: WILSON v. STATE.
• Court: Alabama Court of Appeals

101 So. 417

20 Ala.App. 137

WILSON v. STATE.

1 Div. 527.

Court of Appeals of Alabama

June 10, 1924

Rehearing Denied June 30, 1924.

Appeal from Circuit Court, Mobile County; Safford Berney, Judge.

Sarah Wilson, alias, etc., was convicted of miscegenation, and appeals. Affirmed.

Ordinarily improper questions not answered are harmless.

The indictment is as follows:

"The grand jury of said county charge that, before the finding of this indictment, Sarah Wilson, alias Sarah Simmons alias Shreveport Sarah, whose name is to the grand jury otherwise unknown, a negro or a descendant of a negro, and Charles Medicus, a white person, did intermarry or live in adultery or fornication with each other against the peace and dignity of the state of Alabama."

These, among other grounds of demurrer, were assigned to the indictment:

"(1) Said indictment charges no offense.

"(2) Said indictment does not allege that the defendant is a negro, or a descendant of a negro to the third generation.

"(3) For aught that appears from the indictment, the defendant may be the descendant of a negro beyond the third generation, and, if such be a fact, the indictment charges no offense.

"(4) Said indictment charges, in the alternative, that the defendant is a negro, or the descendent of a negro, but does not charge that she is a descendent of a negro to the third generation, inclusive."

Refused charge 4 is as follows:

"(4) Gentlemen of the jury, if there is a probability of the defendant's innocence, you cannot convict the defendant."

Edward J. Grove, of Mobile, for appellant.

Harwell G. Davis, Atty. Gen., and Lamar Field, Asst. Atty. Gen., for the State.

BRICKEN P.J.

The charge, by indictment, against this defendant was the offense of miscegenation; the indictment containing the averment that this defendant (naming her) being a negro or a descendant of a negro, did intermarry or live in adultery or fornication with one Charles Medicus, a white person. The indictment is substantially in Code form and is therefore not subject to the first four grounds of demurrer interposed. Code 1907, § 7132.

The statute under which the indictment in this case is drawn, or preferred, is not violative of the federal Constitution, nor is it null and void as insisted by demurrer because it discriminates against the defendant who is charged with being a negro. These questions have been decided many times by the Supreme Court of this state adversely to the contention here made. Pace v. State, 69 Ala. 231, 44 Am. Rep. 513, and cases cited. The court properly overruled the demurrers to the indictment. Linton v. State, 88 Ala. 216, 7 So. 261.

There was no contention upon the part of the state that this defendant and the said Medicus had intermarried; but the insistence was that they lived together in a state of adultery (felonious adultery because of the racial feature involved), as charged in the second alternative averment of the indictment. On the trial of this case there was no controversy relative to the fact that Charles Medicus, named in the indictment, was a white person. The material inquiry was, therefore, Did the said Medicus and this defendant live together in a state of adultery within the time covered by the indictment, and, was this defendant a negro or a descendent of a negro? the evidence being without dispute that Medicus was a married man.

The evidence adduced upon each of these propositions was in conflict and presented questions for the determination of the jury, and upon both of these questions there was ample testimony, if believed by the jury under the required rules, to sustain the verdict of the jury and the judgment pronounced thereon. The refusal of several special written charges requested by defendant and numerous rulings of the court upon the testimony, to which exceptions were reserved, are relied upon for a reversal of the judgment appealed from.

One of the principal controversies upon this trial was whether or not this defendant was a negro woman, or the descendant of a negro. In this connection the court, over the objection of defendant, permitted the witness, Mrs. Charles Medicus, to testify that she knew the defendant Sarah Wilson, sometimes called Sarah Simmons, and sometimes called Shreveport Sarah, and that she is a negro woman. No motion was made to exclude the answer of the witness; but it is here insisted that the objection interposed to the question calling for this answer should have been sustained, and that it called for testimony which was invasive of the province of the jury and an opinion or conclusion of the witness. We do not so conclude, and are of the opinion that no error was committed by the court in this ruling, and in other rulings of similar import upon this line of inquiry. Jones v. State, 156 Ala. 175, 179, 47 So. 100, 102. In the Jones Case, Justice Denson, for the court, said:

"The state's witness testified that 'Ophelia Smith looked like a white woman- was a white woman.' The court committed no error in overruling the motion to exclude the expression 'looked like a white woman.' But, if it were error not to exclude the expression, it would be a harmless one, because the positive evidence of the witness was that 'she was a white woman."' (Italics ours.)

See, also, Parker v. State, 118 Ala. 655, 23 So. 664; Metcalf v. State, 16 Ala. App. 389, 78 So. 305.

On cross-examination of the witness Mrs. Charles Medicus she testified, among other things, that the defendant lived in a negro house with negro people. And she also stated on cross-examination, "You can tell by her looks she is a negro." And in reply to question by defendant's counsel, "Q. Do you know whether or not her father or mother have any negro at all in them, of your own knowledge?" she answered: "Why certainly, by looking at her. I do not know who they are. I could not swear how that is, by looking at her, I know." She also testified on cross-examination: "I saw negro women in the house all the time, and she has been on the streets with negroes. On one occasion I saw her, and another woman, and two negro men come out of her house together." This witness gave other testimony of similar import on this question.

State witness William Earnest also testified that this defendant is a negro woman, and that she married a negro man by the name of Wilson, and that he had seen her with negro people, and further that "within the last week I saw negroes coming up in the courthouse with her. I saw her with a negro woman named Ruby; after they left the courtroom I saw them kiss, they kissed her good-bye downstairs. This woman here (defendant) kissed Ruby good-bye. Ruby was a negro mighty near black." On cross- examination by defendant's counsel this witness testified: "I have seen her in negro assignation houses." Cliff Adams, witness for the state, testified: "I know Sarah Wilson, alias Sarah Simmons, alias Shreveport Sarah. I am connected with the police department. I judge I have been knowing her ten years, by sight, and during that time I have seen her frequently." He was asked, "Is she a negro woman?" Defendant objected to the question as calling for the opinion of the witness, and excepted to action of the court in overruling the objection. Witness answered: "Yes, sir. I know she has negro associates. I know she associates with Skip Lewis, a negro woman. There is Skip with a gray coat on. Skip is a negro woman." On cross-examination defendant's counsel asked, "How much negro has Skip in her?" to which witness replied, "Skip Lewis is a full-blooded negro, best of my opinion." He was then asked, "What is a full-blooded negro?" and answered: "Supposed to be all negro. Q. What is that? A. No white parents, 100 per cent. negro." And in answer to the question, "Were her parents Africans, or Americans, or what," witness stated: "I could not say; I know she is a negro. Q. Do you know how much negro blood the defendant has in her, if any? A. I know she has a great part of it. Q. How much? A. She is a negro, I know that. Q. How do you know she has a great amount of negro blood in her? A. By her color, and by hearing her say she was colored. Q. And that is the only way? A. By her color and associates." On redirect examination: "Q. And she told you she was colored? A. Yes, sir; she has been picked up by the police department many times, and she said she was a negro, and she was locked up with the colored women there."

On redirect examination of this witness it will be noted that he was permitted, without objection or exception, to state that this defendant had been picked up by the police department many times, and that she was locked up with the colored women there. It is apparent that defendant's case should not have been burdened with this character of testimony, for on the trial of this case it was wholly immaterial and irrelevant that "she had been picked up by the police department many times, and that she was locked up with the colored women there," and naturally this testimony would tend to prejudice the jury against her; but it was received with the apparent consent of defendant as no ruling of the lower court was invoked.

This court is without authority to put the lower court to error in the absence of an adverse ruling to appellant. McPherson v. State, 198 Ala. 5, 73 So. 387; Montgomery v State, 204 Ala. 389, 85 So. 785. Moreover, the jurisdiction of this court is appellate, and its duties are revisory only. Under the statute the court can only consider questions apparent on the record, or reserved by bill of exceptions. Code 1907, § 6264. No objection having been made to the introduction of this testimony, or any ruling of the court thereon invoked, we are without authority, as stated, to give the appellant...