White v. State, 74 Ala. 31

White v. State

74 Ala. 31 | Ala. | 1883

BRICICELL, C. J.

— 1. There was no error in the action of the Circuit Court in refusing to cpiash the indictment upon the motion of the appellant. The entertaining of a motion to quash is, as a general rule, in the sound discretion of the lower court, and not revisable by this court on appeal. — State v. Jones, 5 Ala. 666. In Nixon v. State, 68 Ala. 535, it was left undecided by the court, whether or not there might be cases in which a refusal to quash an indictment upon motion would be revisable ; but we are clearly of opinion that the present is not such a case.

2. The second, third, fourth and fifth charges requested by the .appellant, were properly refused by the court. The effect *34of these charges would have been, to compel the jury to make a special finding as to which of the two offenses, adultery or fornication, they elected to convict the defendant. — Kilgore v. State, and Jackson v. State, at present term; ante, pp. 1, 26.

3. The sixth charge requested by the appellant was properly refused. It states the erroneous proposition, that for either óf the parties to be guilty of adultery, both must'be married. Adultery is “ the illicit intercourse of two persons of different sexes, where either is married.” — Clark’s Crim. Law, § 1544; Hinton v. State, 6 Ala. 864.

4. The first charge requested by the appellant is as follows: “ The jury can only look to the sworn statements of the witnesses, in determining wdiether the defendant is a man ; and if the jury are not satisfied from the sworn statements of all the witnesses examined in this case, they must find the defendant not guilty.” The court refused to give the charge, but instructed the jury, that they “could look at the defendant, in connection with all the evidence in the case, in determining whether the sex of the defendant was male or female.” We are of opinion that there was no error in this action of the Circuit Court. The defendant was present in court; and it was clearly competent for the jury to draw the inference from his dress and general appearance that he was of the male sex. This species of evidence is said by Mr. Wharton to be one of the “ most effective modes of conviction.” — Wharton’s Crim. Ev. §§ 311 et seq.

■ We find no error in the record, and the judgment must be affirmed.