Owens & Beaty v. State

94 Ala. 97

• Court: Supreme Court of Alabama
• Decided: November 15, 1891
• Status: Published

Opinion

WALKER, J.

— The defendants, Joe Owens and Prudence Beaty, were convicted on the charge of living together in a state of adultery or fornication. The cohabitation was not denied, but the defendants claimed that they had been duly married. There was evidence tending to show that, at the time of their alleged marriage, the female defendant was the wife of one Beaty. Evidence was admitted, without objection, to show that the defendant Prudence and the man Beaty lived in the same house as husband and wife, treated each other as husband and wife, and so called each other. Against the objection of the defendants, a witness was permitted to state that, while the defendant Prudence and the man Beaty lived together, a child wdio lived with them called the man Beaty father, and that the man Beaty called the defendant Prudence his wife. This evidence was admissible against the-defendant Prudence. Marriage may be proved by the admissions and declarations of the parties; and the man’s recognition of himself as the parent of the woman’s child, and the fact that he allows the child to call him father, are circumstances tending to show marriage.— Williams v. State, 54 Ala. 131; Green v. State, 59 Ala. 69; 2 Greenleaf on Evidence,. § 462. This evidence being admissible against one of the defendants, the other defendant was not entitled to have it entirely excluded. The remedy of the defendant Owens, to prevent the use of this evidence against him, was to ask instructions limiting its effect, so as to confine its influence to his co-defendant, against whom alone it was admissible.— Williams v. State, 81 Ala. 1 ; Alsobrooks v. State, 52 Ala. 24.

The offense of bigamy is complete when the second marriage is complete, without proof of subsequent cohabitation. — Beggs v. The State, 55 Ala. 108. The offense of adultery is not necessarily involved in bigamy, and there may be a prosecution for living together in a state of adultery, although the parties may also be guilty of bigamy. There was no error in the charge of the court on this subject.

The first charge requested by the defendants was properly refused. There was evidence tending to show.that they lived together in a state of fornication before their alleged marriage. It was not necessary to prove adultery to support the indictment. If there had been no evidence that the defendants cohabited together before formal marriage, it would have been .necessary to show the invalidity of that marriage.

If the defendant Prudence and the man Beaty were in fact ■¡married, the understanding of the defendants to the contrary would not relieve their cohabitation of its adulterous character. 'This consideration discloses the incorrectness of the second charge requested by the defendants.

Aifirmed.