Linton v. State, 88 Ala. 216

Linton v. State

88 Ala. 216 | Ala. | 1889

McCLELLAN, J.

—

The indictment in this case sufficiently charges the crime of miscegenation against the appellant, a white woman, and John Blue^a negro man. — Pace et al. v. State, 69 Ala. 231; Code, § 2.

There was no error in allowing the State to make profert of the person of John Blue to the jury, in order that they might determine by inspection whether he was a negro, as charged in the indictment. There had been a severance in the trials of the appellant and Blue, and evidence of this character is clearly competent to show sex (White v. State, 74 Ala. 31); age (State v. Arnold, 13 Ired. 184); personal resemblance (State v. Woodruff, 67 N. C. 89; State v. Britt, 78 N. C. 439); color and race (Garvin v. State, 52 Miss. 207; Gentry v. McMinnis, 3 Dana, (Ky.) 385), and many like facts in regard to the personality of the defendant himself, or of any other individual involved in the issue. — Whart. Cr. Ev. §§ 311 et seq.

Clause 5, section 2, of the Code defines the terms “negro” and “mulatto,” when and as used in the Code, and makes the former include the latter, and the latter to mean “a person of mixed blood, descended on the part of the father or mother from negro ancestors to the third generation inclu*219sive, though one ancestor of each generation may have been a white person.” Interpreted in the light of these definitions, section 4018, for a violation of which the appellant was convicted, may be read as if the words “or the descendants of any negro,” &c., to the word “intermarry,” were omitted, since the preceding word “negro” embraces all descendants of a negro to the third generation, though one ancestor of each generation be a white person. And a conviction had on proof that one of the parties was a-mulatto would not be bad for variance, since “mulatto” and “negro” are interchangeable terms throughout this body of laws. The contention of appellant, that she could not be convicted of the felonious grade of the offense charged,- if it appeared that her paramour was a mulatto, the indictment charging cohabitation with a negro, proceeded, doubtless, on the meaning of those terms unaffected by the statute to which we have referred — that is, that a negro, generically considered, is a descendant of the whole blood from the black, woolly-headed race of Southern Africa (Felix v. State, 18 Ala. 726); and that a mulatto is of the half blood, “a person who is the offspring of a negress by a white man, or of a white woman by a negro.”- — Thurman v. State, 18 Ala. 278. Upon whatever ground the contention was predicated, it is untenable; and the charges of the primary court, to the effect that conviction of felony could be had if the man were shown to be a mulatto, as well as its refusals of charges requested which asserted, or were based on the contrary proposition, were free from error.

The charges requested by the defendant, to the effect that there could not be a verdict of guilty, unless the jury should find there was “an agreement” or “understanding” between the parties, that sexual intercourse should continue, palpably tended to mislead the juiy into a belief that, although the parties for a given time, a single day, it may be, lived together in adultery intending to continue that relation, yet they could not be convicted, unless this intention to so continue was evidenced by an agreement, a compact to that effect, and notwithstanding the circumstances might have clearly indicated such intention aside and apart from any agreement. The charges were properly refused. — Hall v. State, 53 Ala. 463; Smith v. State, 39 Ala. 554.

Charge No. 4 asked by the defendant and refused, was purely an argument, based on the failure of the State to show that the character of the defendant for chastity was *220bad. Moreover, tbe charge was affirmatively bad. On the trial of the female defendant (and she alone was on trial here), it is not competent for the State to attack her character for chastity.- Blackman v. State, 36 Ala. 295.

The remaining requests for instructions base defendant’s right to an acquittal upon the jury’s having a doubt, whether reasonable or not is not hypothesized, as to whether she lived in adultery with John Blue, as charged, or with another named person. Their refusal was manifestly proper. Humbree v. State, 81 Ala. 67; Jones v. State, 79 Ala. 23.

We discover no error in the record, and the judgment of the Circuit Court of Pike is affirmed.

Note — The case of John Blue v. The State, under the same indictment, was affirmed on the authority of the above case.