McLeod v. State , 35 Ala. 395 ( 1860 )

STONE, J.

In the case of The State v. Glaze, 9 Ala. 283, the indictment charged, “that Thomas Glaze and Cynthia Gage, * * did live together in adultery.” The indictment was held sufficient by this court. The statute under which the conviction in the case of Glaze was had, is in substance re-enacted in the Code. — Clay’s Big. 431, § 3; Code, § 3231. This re-enactment of the statute must be regarded as a legislative adoption of the con «ruction placed on it. — Anthony v. The State, 29 Ala. 27. The indictment in the case of Glaze not averring the sex of the defendants, the present indictment must be held sufficient. — Hinton’s case, 6 Ala. 864; Lawson’s case,, 20 Ala. 65.

[2.] The testimony of the witnesses Kilpatrick and' Williams, who proved acts of familiarity dating anterior-to the time covered by the indictment, was not improper.. Nor did the court err in refusing to give the charge asked; by the defendants on this testimony. While it is conceded,, that a conviction cannot be had for an adulterous intercourse, which took place more than twelve months before the commencement of the prosecution; still, testimony-tending to establish such intercourse is admissible, in corroboration of the other evidence, which tended to show a living together in adultery within the twelve months. Such testimony, when adduced, tends to strengthen the evidence of the act specifically charged, and is not confined in its operation, as the charge asked supposes.

In the case of the Commonwealth v. Meriam, 14 Pick. 518, such testimony was received, in support of another witness, whose credibility had been somewhat attacked. See, also, Lawson v. The State, 20 Ala. 65 ; State v. Wallace, 9 N. H. 515.

[3.] In entering up the confessed judgment, the court committed an error. Whitfield Clark confessed a judgment, as the surety of each defendant, for each fine, and costs. The fines were assessed separately, and the record furnishes no authority for fastening the liability of one of the defendants on the other. Clark is the surety of both ; but they, the defendants, do not appear to be sureties for each other. The judgments should have been separate; that is, against Daniel McLeod and Whitfield Clark, his surety, for one hundred dollars, and costs; and against Delany Waters and Whitfield Clark, her surety, for the other fine of one hundred dollars, and costs.

[4.] The judgment of the circuit court is reversed, and here rendered in accordance with this opinion. — Pike v. Bright, 29 Ala. 332; Witherington v. Brantley, 18 Ala. 197; Drane v. King, 21 Ala. 556; Savage v. Walshe, 26 Ala. 619.

Reversed and rendered, at the costs of the appellant.