Pace v. State , 69 Ala. 231 ( 1881 )

SOMERVILLE, J.

The indictment here charges, that, “Tony Pace, a negro, or the descendant of a negro to the third generation inclusive, a man, and Mary Ann Oox, a white woman,, did live together in a state of adultery or fornication.” The offense charged is that denounced by section 4189 of the Code. The language of this section is, “live in adultery or fornication with each other.” We think there is no essential -difference in the signification of the. phrases used respectively in the indictment and statute, and that they are substantially the same in meaning. In Eorm number 22 of indictments, for living in adultery or fornication, under § 4184 of the Code, both are indiscriminately authorized, and are regarded as synonymous.

The statute, under which this indictment is found, is not, in our opinion, obnoxious to any constitutional objection. It is not, as insisted by appellants’ counsel, violative of the first secfion of the Fourteenth Amendment of the Federal Constitution, which forbids a State to “make or enforce any law which shall •abridge the privileges or immunities of citizens of the United States,” or to “deny to any person within its jurisdiction the ■sgual protection of the lanes.” The fact that a different punishment is affixed to the offense of adultery when committed between a negro and a white person, and when committed between two white persons or two negroes, does not constitute a discrimination against or in favor of either race. The discrimination .is not directed against the person of any particular color or race, but against the offense, the nature of which is determined by the ■opposite color of the cohabiting parties. The .punishment of •each offending party, white and black, is precisely the same. There is obviously no difference or discrimination in the punishinent. ■-' The evil tendency of the crime of living in adultery or fornication is greater when it is'committed between persons of the two'races, than between persons of the same race. ’ Its result may be the amalgamation of the two races, producing a mongrel population and a degraded civilization, the prevention -of which is dictated by a sound public policy affecting the high■est interests of society and government. To thus punish the •crime denounced by the statute, by imposing the same term of imprisonment and the identical amount of fine upon each and every person guilty of it, can in no sense result in any inequality in the operation or protection of the law. This view of the case is fully settled by the past decisions of this court, upon which it is entirely needless to enlarge. — Green v. The State, 58 Ala. 190; Ford v. The State, 53 Ala. 150; Ellis v. The State, 42 Ala. 525; Hoover v. The State, 59 Ala. 57. It is also sustained by the decisions of the highest courts of many of our sister States; State v. Gibson, 36 Ind. 389 (S. C. 10 Amer. Rep. 42); State v. Kennedy, 76 N. C 251 (S. C. 22 Amer. Rep. 683); Frasher v. The State, 3 Tex. Ct. Appeals, 263 (S. C. 30 Amer. Rep. 131); Kinney’s Case, 30 Gratt. (Va.) 859 (S. C. 32 Amer. Rep. 690.)

The bill of exceptions fails to set out all the evidence, and in the absence of it, we can not assume that the court erred in refusing to give the charge requested by appellant. The charge will be presumed to be abstract unless it is shown to be supported by the evidence as appearing in the bill of exceptions. 1 Brick. Dig-, p. 338, § 40.

The demurrer to the plea in abatement of the defendant Cox was properly sustained. The law knows but one Christian name, and it has been held by this court that the omission or insertion of a middle name is entirely immaterial and may be disregarded. If a middle name is averred, it need not be proved. — Edmundson v. The State, 17 Ala. 179.

The judgment of the Circuit Court must be aifirmed.