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charge of illicit intercourse within a limited period, evidence of acts between the parties, anterior to that period may be adduced, in connection with, and in explanation of, acts of a similar character occurring within that period, although such former acts would be inadmissible as independent testimony, h and if treated as an offence, would be barred by the statute of limitations. ¿ In point of fact, as evidence of adultery is almost always circumstantial, and as even when it is direct, corroborative evidence is admissible to support it, it is difficult to see how evidence of prior improper familiarities can be rejected. j On the other hand, evidence of improper conduct by the defendant with other parties than those charged in the indictment is clearly inadmissible, k and evidence of guilt with the same party subsequent to the finding of the indictment is inadmissible, unless to corroborate facts proved to have taken place before.l And it is plain that evidence of a propensity to commit the particular offence is inadmissible. m Suspicions of the wife, n and rumors in the neighborhood, o are both inadmissible.
Evidence, on an indictment against an unmarried woman, is inadmissible to show that she had been delivered of a child which might have been begotten about the time of the offence charged. p
3. Confessions. § 2664. Where a man and woman are jointly indicted, and tried for living together in fornication or adultery, the confessions of the one party are admissible evidence against such party; 9
h State v. Marvin, 35 N. H. 22; 1 Com. v. Horton, 2 Gray, 354; State People v. Jenness, 5 Mich. 305. v. Crowley, 13 Alab. 172; Com. v.
i Lawson v. State, 20 Alab. 66; Pierce, 11 Gray, 447; and the doctrine Com. o. Pierce, 11 Gray, 447. Ante, enlarged in Thayer v. Thayer, 101 § 631-6, 639-41, 649, &c.
Mass. 111. See ante, $ 631-6, 639-41, j Com. v. Call, 21 Pick. 509; Searls 647–52. v. People, 13 Illinois, 599; Com. v. m See ante, § 539, 641; but in Horton, 2 Gray, 354; Richardson Blackman v. State, 36 Alab. 295, the v. State, 34 Texas, 142; Com. v. unchaste character of one of defendThrasher, 11 Gray, 450, holding that ants was held admissible. But this is evidence of prior adultery is inadmis- not safe law. sible, is justly overruled in Thayer v. n State v. Crowley, 13 Alab. 172.
Thayer, 101 Mass. 111. See contra, o Belcher v. State, 8 Humphreys, as to incest, Lovell v. State, 12 Ind. 63. 18. See ante, $ 631-6, 639-41, 649. p Com. v. O'Connor, 107 Mass. 219. k State v. Bates, 10 Conn. R. 372.
9 Lawson v. State, 20 Alab. 66.
but not against the alleged paramour. r Nor can there be a joint conviction upon one act of adultery confessed by one party, coupled with another act confessed by the other party. 8
4. Alleged Paramour a Witness. § 2655. The party with whom the prisoner is alleged to have committed the offence is a competent witness for the defendant. t
5. Husband and Wife as Witnesses. § 2665 a. Neither husband or wife can be witness for or against the other in prosecutions of this class. u
V. VERDICT. § 2665 b. On an indictment for adultery, there may, if the marriage be disproved, be a conviction of fornication, when the latter offence is locally indictable. v
VI. ATTEMPTS AND SOLICITATIONS. § 2666. The law of attempts is to be discussed in a subsequent chapter, to which the reader is referred. w Solicitation of another to commit adultery is an offence at common law in those states where both parties may be convicted of the adulterous act. But it is otherwise where the statute defining the offence makes the party soliciting incapable of committing the offence. y As he could not be convicted as an accessary before the fact, so he cannot be convicted of attempting to be an adulterer himself. The woman's will is interposed between his intent and the act; and hence, on the princpiles in future to be developed, yl he could not be convicted of the mere solicitation. See, however, the cautions given ante, As to peculiar Iowa statute, see State § 2630.
v. Dingee, 17 Iowa, 232. r Com. v. Thompson, 99 Mass. 444; v Ante, § 628; State v. Cowell, 4 Spencer v. State, 31 Texas, 64. Ante, Ired. 231; Res. v. Roberts, 2 Dall. 124; § 703.
1 Yeates, 6; Com. v. Dinkey, 5 Hars Ante, 435; Com. v. Cobb, 14 ris, 126; contra, State v. Pearce, ? Gray, 57.
Blackf. 318; Smitherman v. State, 27 t Stat v. Crowley, 13 Alabama, Alab. 23; though see State v. Hinton, 172.
6 Alab. 864. u Ante, 767; Com. 0. Jailer, i w Post, $ 2686 et seq. Grant, Penn. 218; State v. Armstrong, x State v. Avery, 7 Conn. 267. 4 Mipn. 335 ; State v. Berlin, 42 Mo. y Smith v. Com. 54 Penn. St. 209. 572; State v. Burlingham, 15 Me. 104. yPost, $ 2691.
I. NATURE OF OFFENCE. $ 2667. It is not proposed to treat, in this place, of the proceedings established by the statutes of the several states in cases of bastardy. They partake essentially of the character of civil process, and though in one or two instances they assume the shape of prosecutions, they cannot be regarded as taking a place among the subjects of criminal action. Fornication, as an individual offence, however, has been said to be a misdemeanor at common law; a and though the better opinion would seem to be, that unless the offence partakes of the nature of public and offensive lewdness, it is not at common law indictable, b yet the question has been put to rest, in most of the states, by express statutory prescription. The nature of the evidence in cases of sexual intercourse has been already noticed under the head of adultery.c
§ 2667 a. The North German Code has struck a line in this respect, which is well worthy of notice. Declining to make fornication the subject of general prosecution, it specifies the following instances when unchastity, or attempts at unchastity, are to be punished :
1. When there is an abuse of a situation of trust or power (e. g. guardians, pastors, teachers, tutors, physicians, superintendents or attendants in hospitals and asylums).
2. When a woman is seduced under promise of marriage.
3. When a girl under sixteen, with or without promise of marriage, is seduced.cl
a State v. Cox, N. C. Term R. 2 Bailey, 149 ; Brooks v. State, 2 YerTaylor, 165.
See Crouse v. State, 16 b Smith v. Minor, Coxe's R. 16; Ark. 566. Anderson v. Com. 5 Rand. 627; Com. c Ante, $ 2663. v. Isaacs, 5 Rand. 634; Com. v. Jones, c1 Berner, Lehrbuch, &c. & 186. 2 Gratt. 555; State v. Brunson, 2
§ 2668. The participants, as in adultery, may be jointly indicted. d
The fact that the defendants are not married to each other need not, as a general rule, be averred, when the statutory term “ fornication ” is used ;e and the precedents in use mostly rest on this view. f In Massachusetts, however, and in those states in which fornication has a special penalty when committed with single women, implying that there is a class of fornication not so limited, it is necessary to aver that the parties were single and unmarried.g Wherever, in other words, fornication is used as a nomen generalissimum to cover sexual intercourse with both unmarried and married, and when different penalties are assigned to the two cases, then the indictment must either negative or affirm marriage. But this is not the case where the term is used to designate sexual intercourse by an unmarried person.
III EVIDENCE. § 2668 a. The parties must be shown not to be married to each other.
How illicit intercourse is to be established has been already discussed. h
§ 2668 b. As has been seen, the usual practice is that on an indictment for adultery there can be a conviction of fornication. i d Ante, $ 2260.
g Com. v. Murphy, 2 Allen, 163. e State v. Gooch, 7 Blackf. 468. h Ante, $ 2663. f Wh. Prec. in loco.
i Ante, $ 2665 6. 832
ILLICIT COHABITATION: INCEST.
I. ILLICIT COHABITATION, $ 2669.
II. INCEST, $ 2669 a.
§ 2669. Nature of offence. Statutes exist in many states making specifically indictable illicit cohabitation. In some aspects (e. g. when the offence is a common scandal), such cohabitation is a nuisance, and may be indicted as such. a But there may be cases of “illicit cohabitation," or "living in adultery,” which are not nuisances, and which distinctively fall within the range of the statutes now before us. In such cases the evidence necessary to support a prosecution must be something more than that of a single act of adultery or fornication. A deliberate continuance in a state of adultery or fornication, though only for a short time, must be shown. b
Indictment. Of the indictments for this class of cases, it is only possible at present to observe, the statutes being so various, that in respect to them the ordinary rules in respect to statutory indictments must be maintained. c One distinctive feature may here be noticed, - that a continuando, though proper, is not generally essential. d
The question of joinder of defendants is the same as in adultery, and has been already noticed. e
II. INCEST. § 2669 a. An offence at common law. — Incest, on the principles already stated in respect to adultery, is a common law offence in a See ante, $ 2391.
d State v. Glaze, 9 Alabama, 283. b Com. v. Calef, 10 Mass. 153; State For other cases on indictments see v. Moore, 1 Swan, 136 ; State v. Glaze, Maull v. State, 37 Alab. 160; Wasden 9 Alab. 283; Smith v. State, 39 Alab. v. State, 18 Ga. 264 ; State v. Lyerly, 554; McLeland v. State, 25 Ga. 477; 7 Jones N. C. 158; State v. Gartrell, Searle v. People, 13 Illinois, 597; State 14 Ind. 280; State v. Fore, 1 Ired. 378; v. Gartrell, 14 Ind. 280 ; State v. State v. Byron, 20 Mo. 210. Marvin, 12 Iowa, 499.
e Ante, $ 2660. c See ante, $ 364-78. VOL. II. — 53