Hill v. State , 137 Ala. 66 ( 1902 )

DOWDELL, J.

The defendant, was tried and convieted before the county court, on an indictment for Hying together with one Iuka Smith in a state of adultery or fornication. The offense charged, as said in Bodiford v. State, 86 Ala. 68, “is, ai crime, of darkness and secrecy, and hence always difficult of direct, proof.” The fact of illicit intercourse;, like any other fact, may become a legitimate inference or conclusion to be drawn from circumstantial evidence. The evidence on the part of the State tended to show such a relation and state of living between the defendant and the woman Iuka Smith, as to reasonably warrant the conclusión of the defendant’s guilt. There was no error in sustaining the solicitor’s objection to the question propounded to the witness Jim Thompson. That portion of the question as to whether Morris Childers “tried to kill him,” Henry, called for an opinion or conclusion of the witness, and for that reason, if no other, was objectionable. — Harrison v. State, 78 Ala. 5, 11; White v. State, 103 Ala. 72, 81; Bailey v. State, 107 Ala. 151.

Whenever an act. of illicit- intercourse is shown by the evidence within the period of time covered by the indictment, evidence of facts and circumstances which tend to show cohabitation between the parties, anterior and subsequent to such period of time is relevant and admissible. — Lawson v. State, 20 Ala. 65; Alsabrooks v. State, 52 Ala. 24; Morrison v. Morrison, 95 Ala. 309; Bodiford v. State, 86 Ala. 67; Walker v. State, 104 Ala. 56; Wright v. State, 108 Ala. 60. Under this principle the testimony of the witness Lampkin objected to by the defendant was competent and the court- committed no error in its admission. So-, too, it was competent to show by the; witness- Iuka that the defendant furnished her with provisions and groceries. This evidence tended to illustrate, the relation existing between her and -the defendant. This witness having testified that her name -was Iuka Tate, it was proper to show by her, that she was also known as Tuka Smith, the name charged in the indictment.

The objection of the State to the question asked the witness Childers, if it was not his purpose in, going to the place where lie saw the defendant bring the woman Iuka Smith, to raise a. row with the defendant, was properly sustained. The purpose of the witness in going to- the place mentioned, was wholly immaterial, and could shed no light on the fact in issue.

There was a conflict in the evidence as to whether the place, where it was charged that the parties lived together, belonged to the defendant, or to his father, Charley Hill. The'State introduced evidence tending to show that the defendant' carried the woman Iuka to the said place and furnished her with provisions while she staid there. The purpose of this evidence was to illustrate and show the character of the relation existing between the parties. The evidence, also showed that Charley Hill, defendant’s father, who- was old and afflicted, lived- in the house. The defendant offered to prove by the witness Iuka, “that she moved out-there under a contract of hire with Charley Hill, the father of the defendant, who was an, old man and a cripple, to look after things and work for him there on the place,” but the court on the objection of the -State, refused to allow this imoof to be made, and to which ruling the defendant duly excepted.- This evidence was competent in rebuttal of the theory, upon which the State offered evidence as to the defendant’s having- carried the woman to- the place. If the State’s evidence along this line tended to show intimate and improper relations between the parties, illustrative of other criminating facts and circumstances, -that, offered by the defendant was in rebuttal of such -tendency of the State’s evidence, and was therefore relevant and competent. The; court, erred in excluding this evidence, and for -this error tire- judgment will be reversed and the cause remandqd.

Reversed and remanded.