Green v. State

59 Ala. 68 | Ala. | 1877

BRICKELL, C. J. —

The plea to the jurisdiction of the Circuit Court was not well founded. The statute requiring the Circuit Court to transfer to the County Court indictments for misdemeanors, in express terms declares the transfer must be ordered, and the papers with a certified copy of all docket entries and minutes of proceedings had therein delivered to the County Court, before the jurisdiction of the Circuit Court ceases. — Pamph. Acts 1874-5, p. 235. The transfer not having been ordered in this case, nor the papers and proceedings certified to the County Court, the jurisdiction of that court had not attached, nor had the jurisdiction, of the Circuit Court terminated.

Marriage may be proved by cohabitation, and the confessions of the parties. Whether these are sufficient and convincing evidence of the fact, depends on their connection and consistency with other facts which may be found in the-particular case. When taken in connection with these facts,, it may appear the cohabitation was criminal, and the confessions untrue in fact, and it may be, fabricated to avoid the-consequences of the illicit cohabitation. The cohabitation* had in this case been shown by the State, and was the essential element of the offence with which the defendants, are* charged. Their declarations that they were man and wife, connected with the fact that they openly lived together as such, had been received in evidence without objection. An instruction to’the jury, at the request of the defendants, that their declarations and conduct were evidence of marriage, without explanation, or qualification, could have no other effect than to confuse and mislead. The evidence was before the jury, and they would necessarily consider it in connection with the other evidence. A naked instruction that the facts were evidence of marriage, would invite the inquiry at once as to the' character of the evidence. Whether the declarations and conduct were mere facts and circumstances tending to prove marriage, or mer& prima facie evidence, ,or were conclusive evidence of the fact, without further instructions the jury could not determine. A court commits no error in refusing a charge requiring explanation or qualification, or which has an obvious tendency to mislead the jury. Swallow v. State, 22 Ala. 20.

There is no error in the record, and the judgment must be affirmed.