Alsabrooks v. State

JUDGE, J. The offence for which the defendants were indicted “ consists of a repetition of acts, or includes a continuation of acts rarely susceptible of direct proof.” [26] On the trial below many acts of the defendants were proved, tending to show illicit intercourse between them, during the period covered by the indictment. The defendants separately moved to exclude all this testimony, because it was “ weak and inconclusive; ” which motion was overruled. In this the court committed no error ; for wherever evidence is pertinent and tends to prove the issue, it is competent. Its sufficiency is a question exclusively for the determination of the jury. II. The declarations proved by the witness, Mrs. Bowen, were competent evidence against the female defendant Bowen, and the fact that the defendant Alsabrooks paid the fee of the midwife, was competent evidence against him. Instead of moving to exclude the evidence from the jury, the defendant Alsabrooks should have requested the court to charge the jury, that the declarations of his co-defendant were not to be taken as evidence against him, and that he could not be convicted except upon evidence aliunde, sufficient to establish his' guilt. It is the settled law of this State that in a case “ involving a charge of illicit intercourse within a limited period, evidence of acts anterior to such period may be adduced in explanation of acts of a similar character, within that period, although such former acts, if treated as an offence, would be barred by the statute of limitations.” Lawson & Swinney v. The State, 20 Ala. 65. Such evidence is only admissible, however, when proposed in connection with, or subsequently to the introduction of evidence tending to establish an improper intercourse between the parties during the time covered by the indictment, as was done in this case. III. The testimony of the witness McKleroy, as to facts occurrring subsequent to the finding of the indictment, was admissible in evidence on the same principle. The court did not err in the charge given, nor in the refusal to charge as requested. The judgment must be affirmed.