13 Ala. 172 | Ala. | 1848
The premonition of the husband of Mrs. McMichael, and the response of the defendant to him, upon her going to live in the family of the latter, does not in itself tend to establish the charge of adultery; and we cannot very well perceive how it could be connected with other evidence, so as to assist in proving the fact. It cannot be inferred from the witness’s assertion, that his wife had ruined him and would ruin the defendant, and the answer of the latter that she must live some where, and he would not drive her from his house, that the defendant was guilty of the ofFence charged. Merely looking at these facts, and we can see nothing from which a criminal intent can be deduced — his purpose in receiving Mrs. McMichael into his house, may have been as his language would import, the dictate of benevolence. The evidence then did not tend to make out the defendant’s guilt — it was irrelevant, calculated to divert the inquiries of the jury, to excite their prejudice and mislead
2. In respect to the second point, the defendant’s guilt cannot be predicated of the state of feeling existing between his wife and Sirs. McMichael. The latter may have been offensive to the wife, either because of her unamiable disposition, her supposed want of chastity, or other cause having no reference to a suspicion of an illicit intercourse between the defendant and herself. But conceding, as it is altogether possible, that Mrs. Crowley suspected and even asserted that Mrs. McMichael was guilty of an adulterous connection with her husband, her suspicions and assertions would not be evidence against him. This must be so upon the plainest principles of law — if not upon the ground that the wife cannot in such a case give evidence against her husband, certainly the evidence should be excluded because the declarations were not made in court under the sanction of an oath. 2 Greenl. Ev. § 40, et post, shows what evidence is admissible to prove adultery.
3. Although adultery is alledged to have been committed iwithin a limited period of time, the evidence is not neccessarily to be confined within that period; proof of anterior acts may be adduced in explanation of other acts of the like nature within that period. 2 Greenl. Ev. ■§> 47. So, where criminal intercourse is once shown, it must be presumed, if the parties are still living under the same roof, that it still continues, notwithstanding those who dwell under the same roof are not prepared to depose to the fact. Id. § 43. The fact may be inferred from circumstances that lead to it by fair inference as a necessary conclusion; what are such circumstances, cannot be laid down universally. They may be infinitely diversified by the situation and character of the parties, by the state of general manners, and by many other incidental circumstances apparently slight in themselves, but which may'have an important bearing upon the particular case. The only general rule, says Lord Stowell, is, that the circumstances must be such as would lead the guarded discretion of a reasonable and just man, to the conclusion that the offence had been committed. He adds, “ the facts are not of a technical nature ; they are facts determinable upon
4. It is said to be a settled rule of evidence, that a particeps criminis, notwithstanding the turpitude of his conduct, is not on that account an incompetent witness, so long as he remains not convicted and sentenced for an infamous ci;ime. But the degree of credit which ought to be given to the testimony of an accomplice, is a matter exclusively within the province of the jury. 1 Greenl. Ev. § 379, 380. It follows from this statement of the law, that Mrs. McMichael was a competent witness, and should have been allowed to give evidence for the defendant. The circuit court ruled the law incorrectly on each of the points referred. Its judgment is consequently reversed, and the cause remanded, that the defendant may be again tried, unless he be otherwise legally discharged.