Campbell v. State , 133 Ala. 158 ( 1901 )

McCLELLAN, C. j.

Joe Campbell, a white man, was indicted, tried and convicted for living in a state of adultery or fornication with Mary Calvin, a negro. The said Mary was separately indicted for living in a state of adultery with him, she being a married woman. On the trial of Campbell, the ¡átate was allowed against his objection to introduce and examine as a witness Island Calvin, tlie husband of the said Mary, to prove its charge against him; and defendant’s exception to this action of the court is relied on here to work a reversal of the judgment. The witness’ wife, Mary Calvin, though also indicted for living in adultery with this defendant, was not, ais we have seen, indicted jointly with him, but separately, and she, of course, was not on trial with him. Testimony of the husband going to prove the unlawful cohabitation between his wife and the defendant against the latter on this trial, could not, therefore, in any wise tend to prove the guilt of the wife under the indictment against her. Nor would the conviction of this defendant be res adju&icata or any evidence of the wife’s guilt. — State v. Cutshall, (N. C.), 26 Am. St. Rep. 599. It is settled in this State that in such case the husband may testify on the trial of the party separately tried for an offense alleged to have been committed jointly by him and the wife. — Woods v. State, 76 Ala. 35. See also Birge v. State, 78 Ala. 435.

A part of the testimony of this witness involved the disclosure of privileged commumcations between Mm and his wife, Mary Calvin; but it was not objected to on that ground, but expressly upon other grounds which were wholly untenable.

The testimony of this witness as to the defendant laughing aloud anent the conversation between the witness and his wife, cannot we t'hink be said to have been immaterial under all the circumstances detailed by the witness.

The charges refused to defendant were severally patently bad; and we will not discuss them as appellant’s counsel does .not insist upon them in his brief.

Affirmed.