Walker v. State , 104 Ala. 56 ( 1893 )

COLEMAN, J.

The defendants were convicted of “Jiving in a state of adultery or fornication.” Two exceptions were reserved on the trial, one to a portion of the charge given by the court ere mero motu, and the other to the refusal of the court to charge the jury as requested by the defendants in writing. There was evidence tending to show the guilt of the defendants as charged in the indictment:. The evidence tended to show that one of the defendants was a married man, and the other an unmarried woman. The woman resided alone a portion of the time. The man was seen to leave the house occupied by her on several occasions quite early in the morning, and on one occasion when his wife, in company with a policeman, went to her house about 2 a. m., he was seen running from the house undressed. The defendants were seen to go off together on several other occasions.

We are of opinion that construing that portion of the charge of the court given ex mero motu, which was excepted to, with reference to the evidence, it was not erroneous. The most that can be said against it is, that it was calculated to mislead, and authorized the defendant to ask for an explanatory charge.

TJiere was no error in refusing the charge requested by the defendant. It is misleading, invaded the province of the jury, and the conclusion does not necessarily follow the predicate. It may be true, and doubtless is, the law, that occasional acts of illicit intercourse, each had ■by a previous understanding or agreement for the particular act, not contemplating a continuance of the unlawful cohabitation or connection, but made in each instance for the single occasion, would not be a violation of the statute; but there may be a state or condition of cohabitation which is unlawful and prohibited by the statute, although the proof may not show more than occasional acts of illicit intercourse. Where there is such evidence as appears in the record before us, it is for the jury to say whether the unlawful state or condition exists. Occasional acts of illicit intércourse, not intending a continuance of the connection, is not the evil against wllich the statute is directed. “If for a single day (or night) they live together in adultery intending a continuance of the connection, the offense is complete.” Hall v. The State, 88 Ala. 236 ; Linton v. The State, 88 Ala. 216; Smith v. The State, 86 Ala. 57; Bodiford v. The State, 86 Ala. 67.

We find no error in the record.

Affirmed.