Lawson v. State, 20 Ala. 65 (Ala.)

GOLDTHYLAJTE, J.

We think the court below did not err in overruling the demurrer to the indictment. If a single act of fornication was indictable, it might perhaps be necessary to allege the constituents which make up the offence, although even then, upon the reasoning of the case of State v. Hinton, 6 Ala. Rep. 365, it would be sufficient to charge the offence in the terms of this indictment. But entertaining some doubts as to the correctness of the reasoning in the case cited, we prefer to rest our decision on different grounds. The offence contemplated by the statute, Clay’s Dig. 481, § 3, was not a single act, but the living together in fornication; and the facts which enter into the composition of this offence are necessarily so complicated, that it is impossible to state them, so that the legal conclusion of guilt will result with certainty and precision, and for this reason it is nunnecessary to allege them. A similar rule prevails, and for the same reason, in an indictment for keeping a common bawdy house; in which the statement of the character of the house, in general terms, is sufficient, without alleging the particular constituents which make up a house of that description. — 1 CMtty’s Cri. Law, 141. So also, an indictment charging the defendant with soliciting a servant to rob his master was held good, without stating the means of solicitation—Rex v. Higgins, 2 East, 4; and in the case of

Rex v. Fuller, 1 B. & P. 180, it was beld, that the charge of an endeavor to incite a soldier to mutiny in general terms, although a felony, was sufficient. The same principle was also recognized by this court, in Sterne v. The State, decided at the present term, in which it was held, that where the of-fence was complicated, consisting of a repetition of acts, or where it was continuous in its character, not implying a single act or any given number of acts, the use of the general term was sufficient.

Neither is there any force in the objection, that the indictment purports on its face to be found by the grand jurors for the State, sworn and charged for Macon county.—Morgan v. The State, 19 Ala. Rep. *556.*

The other questions involve the correctness of the admissibility of the evidence set out in the bill of exceptions, every divisible portion of which was objected to. The greater portion of this evidence related to acts occurring more than twelve months before, or at some period subsequent to the finding of the indictment; and assuming for the present that such facts conduced to establish the criminal intercourse of the defendants below, at the time to which they referred, the question is presented with reference to its admissibility in one aspect only, and that is, as to the time within which the evidence of acts of this character is to be confined. We entertain no doubt that in all cases, whether civil or criminal, involving a charge of illicit intercourse within a limited period, that evidence of acts anterior to such period may be adduced, in explanation of acts of a similar character within that period; although such former acts, if treated as an offence, would be barred by the Statute of Limitations.—2 Greenl. Ev. 36. Evidence of this character would not, however, be admissible as independent testimony, and if so offered should be excluded, but should be received when proposed in connection with, or subsequently to the introduction of evidence tending to establish an improper intercourse between the parties during the period to which the charge is confined, or in the present case to the timé covered by the indictment.

As to the admissibility of evidence, tending to show the criminal intercourse of the parties at a period subsequent to

tbe indictment, there is more difficulty, and after a careful examination, we have been unable to find a case in which this point has been directly decided. The proposition, as a general rule, that acts of indecent familiarity may be explained by proof of the subsequent adultery of the parties, we should doubt, and we think we can see valid objections against it; but that subsequent acts of criminal intercourse can, under no circumstances, be received in explanation of such familiarities, is, we think, equally erroneous. When we concede the correctness of the rule, that previous acts may explain subsequent familiarities, it follows, that what is but an inference in the mind of the jury, created by the evidence of improper familiarities, explained by the fact of prior intercourse, may be corroborated by proof of subsequent illicit connection, which then becomes confirmatory or cumulative evidence. It will be observed, that upon the principle on which we have placed evidence of this character, it is prima facie irrelevant, and that when offered, its relevancy should be shown by its connection with acts already in evidence, or its proposal with facts subsequently to be established. There is also another principle upon which evidence of this character may be received in cases like the present. The fact to be established by th e evidence is, that the parties lived together in a certain condition; and if this particular condition of life was proved to exist, both anterior and subsequent to the time alleged in, or covered by the indictment, an inference might often be correctly drawn as to the existence of this condition during the intermediate period. We would not be understood to say, that this inference would exist in every supposable case in which such proof could be made; in some instances, the two periods, at which the particular condition was proved to exist, might be so far apart as to afford no reasonable inference as to the intermediate time, and in that case the evidence would be inadmissible. In every case also, much would depend upon the character of the condition; but when the intermediate period was not so long as to be inconsistent with the nature of the condition proved, or when such evidence is offered in explanation of other facts already established, indicative of such condition, it is then relevant, and may in many cases be conclusive. Having stated the

conclusions we bare attained in relation to acts outside of tbe period covered by tbe indictment, in tbe aspect in wbicb we bave considered it, it follows tbat tbe objections to its admission, on tbe ground tbat it referred to acts occurring more tban twelve months before, or at any given period after tbe indictment was found, cannot be sustained.

It is, however, urged, tbat tbe admissions of one of tbe defendants, if admissible in all other respects, should bave been rejected for reasons peculiar to tbe nature of tbe offence charged; tbat on tbe trial of an offence wbicb cannot, from its constitution, be committed by one person, and where all who are charged with its commission are tried together, tbat any evidence wbicb tends to estabbsb tbe guilt of one, and one only, cannot be received. We bave examined with some care, tbe authorities wbicb bave been cited in support of this proposition, but do not find tbat they sustain it. The case of the State v. Jolley & Whitley, 3 Dev. & B. 224, was an indictment of tbe same character as in this case; and tbe defendants being tried together, tbe husband of tbe female defendant, who bad been divorced, was admitted against tbe objection of tbe defendants, to give evidence of their adulterous intercourse during tbe marriage. This evidence was held to be improperly admitted; and Judge Gaston, in delivering tbe opinion, intimates, tbat bad tbe male defendant been tried alone, tbe evidence of tbe husband as to tbe same facts, against him would bave been inadmissible, (not by reason of tbe joint nature of tbe offence, but) because tbe prohibition of husband and wife to testify against each other applied, not only- when tbe testimony tended to convict, but when it tended to criminate or degrade. Tbe case of The State v. Welch, 26 Maine R. 30, turned upon tbe same principle, and tbe husband was held an incompetent witness, simply upon considerations of policy, resting on tbe marriage relation. To tbe contrary of tbe position taken for tbe plaintiffs in error, we find tbat in tbe case of joint offences, where more tban one defendant is on trial, it is tbe well settled practice to admit tbe confessions of one party against himself — tbe court cautioning tbe jury, tbat they are to operate against such party only, and that the other defendants cannot be convicted, except upon evidence aliunde, sufficient to estab-

lisb their guilt. It follows, that the objection to the admissions on this ground is untenable.

The admission of the female defendant below, that Lawson was the father of the child of which she was delivered in the summer of 1850, tended to prove illicit intercourse between herself and Lawson at a time subsequent to the finding of the indictment, and was, under the rule we have established, admissible, if offered under circumstances which rendered its relevancy apparent to the court. Conceding, however, that it was not so offered, that its relevancy did not appear at the time it was proposed, yet its relevancy does appear from the facts shown by the record to have been subsequently offered in evidence.

In this aspect of the case the question of practice is raised, as to the effect of admitting evidence prima facie irrelevant, which is received against the objection of the opposite party, and without its relevancy being in any way shown to the court at the time it is offered. All the authorities agree, that in such case it is the better course for the court to reject it. Van Buren v. Wills, 19 Wen. 203; Weidler v. The Farmers’ Bank of Lancaster, 11 S. & R. 324; Rex v. Hursey, 6 C. & P. 81; Davis v. Calvert, 5 Gill & John. 269, 304. But it is equally clear, upon the same authorities, that while the court may reject it in the first instance, it is not bound to do so, but may let it in, and repudiate it, if, after all is heard, it is still irrelevant.

It follows, that if it appears affirmatively from the record, that the evidence objected to became relevant by its connection with any other testimony subsequently offered, the court committed no error in its admission, or at least not such a one as the party objecting could avail himself of in an appellate court. We have considered the last question with reference to one portion of the testimony only, but an examination of the record will show, that the same principles are applicable to other portions.

The evidence offered by the defendant Lawson, of his refusal to pay for the professional services of the physician, rendered during the confinement of the other defendant, with his statement that the child was not his, not being connected with any conversation or admission offered by the State,

was properly rejected. To have allowed it would bave been permitting tbe defendant to make evidence for Himself.

Another objection urged against a large portion of tbe testimony is, that it did not tend to establish any of tbe ingredients entering into tbe consummation of tbe offence charged, without regard to time; that it tended neither to establish the living together of the parties, nor their illicit intercourse at any period. Upon this head it may be remarked, that the fact of illicit connection is one which from its nature can very rarely be directly proved, and must in the great majority of cases be inferred from circumstances, the weight and conclusiveness of which vary, according to the situation and character of the parties, the habits of society, and other incidental circumstances. Facts apparently trivial and innocent in themselves, sometimes derive importance from their connection and combination with other facts. That the parties were frequently seen riding together in a buggy would, as an isolated and independent fact, prove nothing; but the criminal intercourse between the parties once established, their continued intimacy, as denoted by acts of this character, might be entitled to much weight, as determining upon the question as to the continuance of such intercourse. The intimate association of a man with a female of known impurity is, of itself, a circumstance of some significance; and in all cases of this character, whether civil or criminal, the legal rule follows the rational interpretation. Green. Ev.

The evidence with which the court has had the most difficulty, in arriving at what it deems a correct conclusion in this view, is, the evidence first offered on the part of the State, showing the presence of the female defendant at the house of Lawson, in the night time, in company with her mother, in the year 1848, and the conversation ¡moved by the witness Mabson, which occurred in the presence of the defendant Swinney, against whom only it was offered. The fact that ah unmarried woman is seen in the night time at the house of a single man, who is sick at the time, in company with her mother, it is true, by itself and disconnected from every other fact, proves nothing, and it would be as unjust as uncharitable from that circumstance alone to draw any deduction unfavorable to the virtue of the female. But this evi

dence was not offered by itself, and as an independent fact; it was proposed to be connected with, other testimony subsequently to be offered; and the record informs us that in 1847, circumstances which it is unnecessary here to detail with particularity, were proved, tending to show an act of illicit connection between them at that time in Chambers county: that in 1846 the defendant Swinney was seen alone at Lawson’s house, at an early hour in the morning, and that from 1845 to 1851 she was frequently seen going to and from his house, and during the same period they were frequently seen riding in a buggy together. We are of opinion that, in connection with this evidence, the testimony referred to became relevant. If the jury believed that the defendants were criminally intimate in 1847, the fact that the guilty female was seen at the house of her paramour in the night time, although he was sick, and she was accompanied by her mother, is a fact tending to show that their intimacy still continued, and might properly go to the jury, to be estimated by them.

The conversation which was detailed by the witness Mab-son we regard as inadmissible. It could only be received as' an implied admission against the female defendant, on the ground that by her silence she assented to the correctness of the conclusion, that her co-defendant was the proper person for the physician to look to for the payment of his professional services, for attention during her confinement. The rule laid down by all elementary writers, as the result of the adjudged cases, in relation to evidence of this character, is, that it is to be received with the utmost caution, and never should be received at all, unless the statement is of a character which naturally calls for a reply, and the party to be affected by it is in a situation in which he would probably respond to it. 1 Green. Ev.; Commonwealth v. Kinney, 12 Met. 235. Without considering whether the conversation was such as naturally to call for a response from her, we all concur, that her situation, as disclosed by the evidence, was such at the moment as to render it at least highly improbable that she would make any response. This being' the case, under the influence of the rule above laid down, it should not have been received.

In relation, to the other portions of the testimony, we are unable to perceive any error in their admission. The attention of the female to the ordinary household duties of Lawson, the open and public intimacy of an unmarried man with a woman, who had given the strongest proof of her want of chas-titity by the birth of an illegitimate child, were proper to go to the jury, to show the character of their intercourse, at a time which, although after the finding of the indictment, might, in connection with the other facts establishing their intimacy at an antecedent period, throw some light upon the character of their intercourse during the intermediate time.

For the error, however, in the admission of the evidence of the witness Mabson, the case must be reversed, and the cause remanded.