within the prohibited degrees, as in the case of parent and child, brother and sister, uncle or aunt and niece or nephew, etc.;408 and the party or parties accused must have known of the relationship.409 Relationship of the half blood is within the statutes;410 and illegitimate consanguinity is of the same effect as legitimate.411 Marriage is not necessary to constitute the offense, but sexual intercourse is necessary. 412 The interccurse, however, need not be proved by direct evidence, but may be inferred from marriage and cohabitation, or from cohabitation without marriage. 413 Cohabitation is not necessary unless required by the statute, but a single act of sexual intercourse is sufficient.414 In most states the consent of both parties is not a necessary element of the offense,414a but some courts take

408 Step-parent and step-child are within the statutes within the life of the child's parent, Baumer v. State, 49 Ind. 544; Norton v. State, 106 Ind. 163, 6 N. E. 126; Taylor v. State, 110 Ga. 150, 35 S. E. 161; but not after such parent's death or divorce, Johnson v. State, 20 Tex. App. 609, 54 Am. Rep. 535; Noble v. State, 22 Ohio St. 541.

409 State v. Ellis, 74 Mo. 385, 41 Am. Rep. 321; Baumer v. State, 49 Ind. 544, 19 Am. Rep. 691.

If one of the parties know of the relationship, he or she is guilty, though the other may be innocent. State v. Ellis, supra.

410 State v. Wyman, 59 Vt. 527, 8 Atl. 900, 59 Am. Rep. 753; Shelly v. State, 95 Tenn. 152, 31 S. W. 492, 49 Am. St. Rep. 926; People v. Jenness, 5 Mich. 305; State v. Reedy, 44 Kan. 190, 24 Pac. 66; State v. Guiton, 51 La. Ann. 155, 24 So. 784.

411 People v. Lake, 110 N. Y. 61, 77 N. E. 146, 6 Am. St. Rep. 344; State v. Laurence, 95 N. C. 659; Brown v. State, 42 Fla. 184, 27 So. 869.

412 State v. Schaunhurst, 34 Iowa, 547; People v. Murray, 14 Cal. 160.

413 State v. Schaunhurst, supra.

414 State v. Brown, 47 Ohio St. 102, 23 N. E. 747, 21 Am. St. Rep. 790.

414a State v. Nugent, 20 Wash. 522, 56 Pac. 25, 72 Am. St. Rep. 133; Smith v. State, 108 Ala. 1, 19 So. 306, 54 Am. St. Rep. 140; People v. Stratton, 141 Cal. 604, 75 Pac. 166; David v. People, 204 Ill. 479, 68 N. E. 540. Mere reluctance on the part of the female is no defense. Porath v. State, 90 Wis. 527, 63 N. W. 1061, 48 Am. St. Rep. 954; Taylor v. State, 110 Ga. 150, 35 S. E. 161.

C. & M. Crimes-45.

the contrary view and refuse to sustain convictions for incest where the evidence shows rape.414b

461. Sodomy.-Sodomy or buggery, which is sexual connection by a man or woman with a brute animal, or connection per anum by a man with any other man, or with a woman, is a felony at common law.415

Sodomy or buggery is spoken of by the courts and in statutes as "the unnatural crime," or "the crime against nature." It is so disgusting a crime against morality and decency that it is punished by the common law, not as a misdemeanor merely, but as a felony. To constitute the offense, there must be some penetration, but the least penetration is sufficient.416 Whether emission was necessary at common law is doubtful,417 but the statutes very generally declare it unnecessary. It is not neces

418

414b State v. Jarvis, 20 Or. 437, 26 Pac. 302, 23 Am. St. Rep. 141; State v. Eding, 141 Mo. 281, 42 S. W. 935; People v. Burwell, 106 Mich. 27, 63 N. W. 986.

415 Steph. Dig. Crim. Law, art. 168; 4 Bl. Comm. 215; 1 Whart. Crim. Law, § 579; Rex v. Jacobs, Russ. & R. 331; Reg. v. Allen, 1 Car. & K. 495; Reg. v. Allen, 1 Den. C. C. 364, 2 Car. & K. 869, 3 Cox, C. C. 270, 13 Jur. 108; Com. v. Thomas, 1 Va. Cas. 307; State v. La Forrest, 71 Vt. 311, 45 Atl. 225.

The act in a child's mouth is not sodomy. Rex v. Jacobs, supra; Com. v. Thomas, supra; People v. Boyle, 116 Cal. 658, 48 Pac. 800; Prindle v. State, 31 Tex. Cr. R. 551, 21 S. W. 360, 37 Am. St. Rep. 833.

But where the statute denounces "sodomy, or other crime against nature," any copulation contrary to nature is included. Honselman v. People, 168 Ill. 172, 48 N. E. 304; Kelley v. People, 192 Ill. 119, 61 N. E. 425. And see State v. Vicknair, 52 La. Ann. 1921, 28 So. 273. Woman is included in the term "mankind." Lewis v. State, 36 Tex. Cr. R. 37, 35 S. W. 372, 61 Am. St. Rep. 831.

416 Rex v. Duffin, 1 East, P. C. 437, Russ. & R. 365.

417 See Rex v. Duffin, supra; White v. Com., 23 Ky. L. R. 2349, 73 S. W. 1120.

418 Rex v. Reekspear, 1 Mood. C. C. 342; Rex v. Cozins, 6 Car. & P

sary that the act shall be done without the consent of the other party.419

462. Fornication and Adultery.-Fornication and adultery were not common-law crimes in England, nor, by the weight of authority, are they so in this country, unless committed openly and notoriously, so as to constitute a public nuisance. In many states, however, they are now punished by statute.

Definitions.-There is some difference of opinion as to the definitions of "fornication" and "adultery," so that what is fornication in one state may be adultery in another, and vice versa. As we shall see, these acts were not punished at common law, but were punished as ecclesiastical offenses in the ecclesiastical courts. They were known, however, to the common law for some purposes, but the common-law and canonlaw definitions differed. The common law regarded adultery only as it tended to expose a husband to the maintenance of another man's children, and to having another man's children inherit his property, and it was therefore necessary that the woman should be married. Intercourse by a man, whether married or single, with another man's wife, was adultery in both, but intercourse by a man, whether married or single, with an unmarried woman, was not adultery in either, but fornication only.420 The canon law, on the other hand, condemned and punished adultery because of the violation of the marriage vow, and did not necessarily require the woman to be married. For a married person, whether a man or a woman, and a single person to have sexual intercourse was adultery on the part of the married person, and fornication on the part of the single person.421 Of course, two single persons

419 Reg. v. Jellyman, 8 Car. & P. 604; Reg. v. Allen, 1 Den. C. C. 364, 2 Car. & K. 869, 3 Cox, C. C. 270, 13 Jur. 108.

420 3 Bl. Comm. 139; Com. v. Call, 21 Pick. (Mass.) 509, 32 Am. Dec. 284.

421 Com. v. Kilwell, 1 Pittsb. (Pa.) 255; Hood v. State, 56 Ind. 263, 26 Am. Rep. 21.

cannot be guilty of adultery under either definition.422 In construing statutes punishing fornication and adultery without defining the offense, some courts have adopted the common-law definition,423 while others have adopted the definition of the canon or ecclesiastical law.424

426

As a Common-Law or Statutory Offense.—In England, fornication and adultery were punished in the ecclesiastical courts, but they were not regarded as crimes at common law, unless committed openly.425 Nor, according to the weight of authority, are they punishable at common law in this country.* It is otherwise, however, if they are committed openly and notoriously, so as to set a pernicious example, create public scandal, and thus constitute a public nuisance.427 In most states, these offenses against public morals and decency are now expressly punished by statute.428 The necessity for a criminal

422 Com. v. Kilwell, supra; Smitherman v. State, 27 Ala. 23; State v. Thurstin, 35 Me. 205, 58 Am. Dec. 695.

423 State v. Wallace, 9 N. H. 515; State v. Taylor, 58 N. H. 331; Hood v. State, 56 Ind. 263, 26 Am. Rep. 21; State v. Pearce, 2 Blackf. (Ind.) 318; State v. Lash, 16 N. J. Law, 380, 32 Am. Dec. 397; State v. Armstrong, 4 Minn. 335.

424 Com. v. Call, 21 Pick. (Mass.) 509, 32 Am. Dec. 284; Helfrich v. Com., 33 Pa. 68, 75 Am. Dec. 579; Cook v. State, 11 Ga. 53, 56 Am. Dec. 410; State v. Hutchinson, 36 Me. 261; Territory v. Whitcomb, 1 Mont. 359; Miver v. People, 53 Ill. 59; Com. v. Lafferty, 6 Grat (Va.) 672; State v. Hasty, 121 Iowa, 507, 96 N. W. 1115.

425 3 Bl. Comm. 139; 4 Bl. Comm. 65.

426 Anderson v. Com., 5 Rand. (Va.) 627, 16 Am. Dec. 776, Mikell's Cas. 64; State v. Brunson, 2 Bailey (S. C.) 149; Delaney v. People, 10 Mich. 241; State v. Avery, 7 Conn. 266, 18 Am. Dec. 105; State v. Cooper, 16 Vt. 551; Carotti v. State, 42 Miss. 334, 97 Am. Dec. 465; Brooks v. State, 2 Yerg. (Tenn.) 482; State v. Cagle, 2 Humph. (Tenn.) 414; State v. Moore, 1 Swan (Tenn.) 136; Ex parte Thomas, 103 Cal. 497, 37 Pac. 514.

427 State v. Moore, 1 Swan (Tenn.) 136.

In the case of open adultery, it is the nuisance, not the mere adultery, that is punishable. See State v. Brunson, 2 Bailey (S. C.) 149. 428 See Am. & Eng. Enc. Law (2d Ed.) tits. “Adultery”; “Fornica

intent in these offenses, and the effect of ignorance of fact and of law, are elsewhere considered.429

463. Illicit Cohabitation.-Illicit cohabitation of a man and woman is a misdemeanor at common law if open and notorious, but not otherwise. In many jurisdictions, however, it is punished by statute, though not open and notorious.

Illicit cohabitation includes fornication or adultery, according to the circumstances, but it is something more. It is a living together in fornication or adultery. It is not a crime at all at common law unless the cohabitation is open and notorious, so as to amount to public immorality and a public scandal.430 In many jurisdictions, statutes have been enacted expressly punishing such acts, in some states, though not in all, whether committed openly and notoriously, or secretly. These statutes vary in the different states. Some in terms punish illicit cohabitation, while others punish lewd and lascivious cohabitation, and others punish living in adultery or fornication, but the meaning is substantially the same in all. To bring a case within the statutes, it must appear that there was something more than a single act of intercourse. There must be, in the language of the statutes, cohabitation or a living together, and this implies some continuance. 431 It is not necessary, however, that the illicit relation shall continue for more than one day.432 In some states the statutes expressly require that the cohabitation or living together shall be "open and notorious. "433

429 Ante, §§ 56, 70, 73.

430 State v. Brunson, 2 Bailey (S. C.) 149; Delaney v. People, 10 Mich. 241; State v. Cooper, 16 Vt. 551; State v. Moore, 1 Swan (Tenn.) 136; Grisham v. State, 2 Yerg. (10 Tenn.) 595, Mikell's Cas. 19, n.

431 Hall v. State, 53 Ala. 463; Com. v. Calef, 10 Mass. 153; Com. v. Catlin, 1 Mass. 8; Searls v. People, 13 Ill. 597; Miner v. People, 58 Ill. 59; State v. Cassida, 67 Kan. 171, 72 Pac. 522; Carotti v. State, 42 Miss. 334, 97 Am. Dec. 465; McLeland v. State, 25 Ga. 477; State v. Crowner, 56 Mo. 147; Penton v. State, 42 Fla. 560, 28 So. 774; Thomas v. State, 39 Fla. 437, 22 So. 725.

432 Hall v. State, 53 Ala. 463.