Cross v. State , 78 Ala. 430 ( 1885 )

SOMERVILLE, J.

The evidence set out in the bill of exceptions fails to show the relevancy of the record of the judgment of the Circuit Court of Jackson county, showing a conviction of the defendant, in February, 1877, upon his own plea of guilty, of some offense, the nature of which is not made to appear. In the absence of the indictment, upon which the conviction is based, we can not know whether it was for the act of living in adultery with the same person implicated in the preséntense or not, or whether it was for an offense of an entirely distinct nature. This is very material, in view of the existing statute, which punishes a second conviction for living in adultery with the same.person with a severer penalty as an aggravated offense. — Code, 1876, § 4184. The court, it is said in the record, considered the indictment as in evidence, though it was not read, nor was it before the court at the time. This statement gives us no information as to the crime charged by it. Nor did the court have any authority to consider anything as in evidence which was not so in fact, unless upon the admission or agreement of the parties, or their counsel. It may be that valid objections existed to the introduction of the paper in evidence, had it been produced ; and the defendant had a right to inspect it, with the view of interposing such objections. The court erred in admitting the judgment, under the facts shown by the record; and for this error, the judgment in the present case must be reversed.

We need not decide whether the defendant, under the facts of this case, so far waived his right of trial by jury as to justify the judge, of the County Court in-proceeding to try the cause, under the provisions of the act of February 9,1881, regulating the trial of misdemeanors in Jackson county. — Acts 1880-81, pp. 232, 233, § 4. Conceding that such was the case, all we decide is, that the agreement to waive the right of trial by jury must, ordinarily, be construed to apply only to the particular trial at which it is made. Such a waiver is a renunciation of a valuable constitutional right, and must be strictly construed. It may well be supposed, that a defendant would be perfectly willing for a particular judge to try him, when he would not risk his successor; or, tliat he would be willing to be tried the first time by a judge, when he would not submit to a second trial by the same judge, after- such officer had convicted him one or more times, so that the judicial mind might not afterwards be perfectly free from the influence of a bias created by the circumstances of such previous conviction. This would be sufficient ground for the challenge of a juror, and ought not to be considered as waived in the case of a judge, at least on doubtful implication. — Martin v. King, 72 Ala. 354; Stedham v. Stedham, 32 Ala. 525 ; Benbow v. Robbins, 63 N. C. 422.

The motion to strike the indictment from the file was supported by no sufficient reason, and was properly overruled. The signature of the solicitor of the circuit, as often held, was unnecessary to its'validity as’a lawful indictment.— Holley v. The State, 75 Ala. 14; Ward v. The State, 22 Ala. 16. Nor was it material that the deputy-solicitor, without otherwise interfering, was before the grand jury during the investigation of the cause, or that he drafted the indictment, and submitted it to them for their action. These facts did not justify the striking the indictment from the file, or otherwise vitiate it. Blevins v. The State, 68 Ala. 92.

The evidence, in our opinion, tended to show an adulterous intercourse between the parties during the period of time covered by the indictment, whatever our view may be as to its sufficiency or insufficiency to authorize a conviction, unaided by other facts. This being the case, it is. well settled, that proof of acts anterior to the time covered by the indictment could be adduced, to explain or throw light upon other acts of a like nature within such period, or, as is sometimes said, for the purpose of proving an adulterous disposition in the persons implicated. — 2 Greeul. Ev. (14th Ed.) § 47; Alsobrooks v. The State, 52 Ala. 25; Com. v. Horton, 2 Gray, 354; Thayer v. Thayer, 101 Mass. 111.

We discover no other error in the admission of evidence than the one mentioned above. For this error, the judgment of conviction must be reversed, and the cause remanded.