Wright v. State
| Citation | 108 Ala. 60,18 So. 941 |
| Parties | WRIGHT v. STATE. |
| Decision Date | 10 January 1896 |
| Court | Supreme Court of Alabama |
Appeal from circuit court, Cherokee county; J. A. Bilbro, Judge.
Tip Wright was convicted for living with a woman in a state of adultery or fornication, and appeals. Affirmed.
When the cause was called for trial, the appellant's codefendant, Jane Ray, was not present in court, and it was shown that she had not been arrested. Thereupon the defendant, Tip Wright, objected to a severance, and to being put upon his trial alone, without the presence of his codefendant. The court overruled this objection, ordered a severance as to him, and put him upon trial; and to this ruling of the court the defendant separately excepted. The other facts of the case are sufficiently stated in the opinion. Upon the introduction of all the evidence, the defendant requested the court to give to the jury the following written charge, and duly excepted to the court's refusal to give the same as asked: (1) "The defendant asks the court to charge the jury that an occasional act of illicit intercourse is not sufficient to constitute the offense of living in a state of adultery or fornication, and that the proof must leave no other reasonable or probable well-grounded belief but that the defendant and Jane Ray did live together in a state of adultery or fornication; and if the jury are not convinced beyond all reasonable doubt, by the evidence, that the defendant and Jane Ray did live together in a state of adultery or fornication within 12 months before the finding of the indictment, the jury should acquit him."
H. W Carden and John L. Burnett, for appellant.
Wm. C Fitts, Atty. Gen., for the State.
The defendant and Jane Ray were indicted for living together in a state of adultery or fornication. Only the defendant was arrested and put upon trial for the offense, his codefendant having escaped. The court did not err in ordering a severance and proceeding with the trial of the defendant. Woodley v. State, 103 Ala. 23, 15 So. 820; Marler v State, 67 Ala. 55.
Evidence having been offered by the state tending to show acts of adulterous intercourse within 12 months before the finding of the indictment, there was no error in receiving evidence of similar acts prior to that time. Such evidence tends to support the charge of living together as charged in the indictment. Cross v. State, 78 Ala. 430.
Where a defendant, by his own questions, elicits irrelevant testimony, or where such evidence is responsive to a question propounded by the state, without objection, it is not a matter of right of the defendant to have the answer excluded. The record must affirmatively show...
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