Opinion
8 Div. 904.
March 20, 1934.
Appeal from Circuit Court, Madison County; Paul Speake, Judge.
Jim Cruse and Janie Wright were convicted of living in adultery, and they appeal.
Reversed and remanded.
Walter J. Price, of Huntsville, for appellants.
A conviction for adultery, resting principally upon suspicion and conjecture, cannot stand. Cornelison v. State, 24 Ala. App. 594, 139 So. 572; Garner v. State, 20 Ala. App. 268, 101 So. 506. One act of criminal intimacy or an occasional such act is not sufficient to warrant a conviction of living in adultery. Smith v. State, 39 Ala. 554; Boice v. State, 10 Ala. App. 100, 65 So. 83. An instruction by the court which invades the province of the jury is error. Andrews v. State, 159 Ala. 14, 48 So. 858; Tucker v. State, 198 Ala. 4, 73 So. 385; White v. State, 111 Ala. 92, 21 So. 330.
Thos. E. Knight, Jr., Atty. Gen., and Thos. Seay Lawson, Asst. Atty. Gen., for the State.
The affidavit is in statutory form, and is sufficient. Code 1923, §§ 4556 (69), 4527. The evidence presented a question for the jury on the issue of defendant's guilt vel non. Rich v. State, 1 Ala. App. 243, 55 So. 1022; Bodiford v. State, 86 Ala. 67, 5 So. 559, 11 Am. St. Rep. 20; Collins v. State, 14 Ala. 608; Fortner v. State, 12 Ala. App. 179, 67 So. 720. The charge of the court did not invade the province of the jury. The evidence did not disclose that Wright lived in the house with defendants. His evidence showed that he had been a resident of another county for a number of months.
Appellants first insist that the court erred in overruling their demurrer to the affidavit upon which they were tried. Upon investigation we find certain demurrers set out in the transcript, but it is not shown by the judgment, or elsewhere in the record, that the demurrer was brought to the attention of the court, or that the court made any ruling thereon, hence said demurrer will be treated as having been waived or abandoned and cannot be reviewed on appeal.
The appellants were jointly charged, and jointly tried, upon an affidavit of one Will Strong, for the offense of simple adultery. They were both convicted and were each duly sentenced to hard labor for the county, and appealed.
It is insisted that each of the state witnesses was admittedly biased and entertained ill will and malice towards the defendants while testifying against them on the trial in the court below. This insistence appears to be borne out by the record of the proceedings, but this is a matter for the jury to consider for it is the sole duty of the jury to accord such weight or probative force to the evidence as they may deem right and proper. It is not within the province of this court, on appeal, to say whether or not the testimony upon which these convictions rested was false or unworthy of credence.
We are of the opinion that the court erred in overruling the objection of defendants to voluntary statement of state witness George Bonner where he stated: "Every time he gets drunk he has a fight with us negroes, he tries to run us off." This testimony was highly prejudicial and in no manner tended to shed any light upon the issues involved upon the trial.
There was also error in the ruling of the court in connection with the testimony of defendants' witness Beulah Phelps, wherein they undertook to refute, or to rebut the testimony of state witness Will Strong, wherein he denied he had used opprobious words, or profane language to the woman defendant on the occasion of a difficulty between this witness and Jim Cruse, the male defendant, and stated: "The woman cussed me out," etc. Under elementary rules of evidence, the defendants were entitled to adduce evidence as to the same conversation and controversy about which the state's witnesses were allowed to testify.
The same applies to the ruling of the court in connection with the testimony of defendant Jim Cruse. The exceptions here reserved appear to have been well taken and are sustained.
Defendants' witness John Albert Wright testified that he is the husband of the defendant Janie Wright, and that the house in which the offense here complained of was alleged to have been committed was his home; that he lived there, and while absent he was engaged in making a crop, but that he returned to his home frequently, etc. It would, therefore, appear that the court in his oral charge inadvertently stated: "The evidence tends to show that Mrs. Wright's husband was not living there." This statement is not borne out by the record, and was highly prejudicial. Moreover, a trial court may not charge upon the effect of testimony, unless required so to do by one of the parties. Section 9507, Code 1923. The exception to this statement of the court was properly reserved and is here properly presented.
The court erred in not granting defendants' motion for a new trial.
Reversed and remanded.