brought forward in the first instance. This conclusion seems better to accord with the legal analogies and reasons than the other; while yet ordinarily such evidence can in the nature of things be only slight and circumstantial. If the woman is a witness, she may testify to her previous virtue.2 $649. Proving woman unchaste.- Similar methods to those explained in the next chapter for proving adultery may be resorted to on this issue. Wanton and indiscreet conduct, for example, may be shown. If she is a witness, she may be asked, on cross-examination, whether she has not used indecent language with other men than the defendant, and been found in bed with them. But it has been held that improper conduct eight years before the alleged seduction, when she was only fourteen years old, is too remote, and it allows too little for the influence of maturer years and probable reformation." We shall see that, in adultery, by the better opinion, libidinous conduct subsequent to the act charged, as well as before, may be shown in aid of the proofs of such act. But, in this offense, on the issue of a previous chastity, the reasons are different. Libidinous conduct after the seduction may be as well traceable to it as to previous unchastity; hence it is not admissible." § 650. Supporting prosecuting witness.-In one case a witness for the defendant testified that, on two occasions prior to the seduction charged, he had committed the unlawful act with the woman. And by the majority of the court it was held that the state was properly permitted, in rebuttal of this 1 West v. S., 1 Wis. 209. See also Safford v. P., 1 Park. Cr. 474; [Zabriskie v. S., 43 N. J. L. 640, 39 Am. R. 610; Oliver v. Com., 101 Pa. St. 215, 47 Am. R. 704; S. v. McCaskey, 101 Mo. 644, 16 S. W. R. 511; S. v. Eckler, 106 Mo. 585, 17 S. W. R. 814, 27 Am. St. R. 372; S. v. Thornton, 108 Mo. 640, 18 S. W. R. 841.] N. W. R. 562; S. v. Bell, 79 Iowa, 117, 2 Kenyon v. P., 26 N. Y. 203, [84 91 Iowa, 499, 60 N. W. R. 129; S. v. Am. D. 177.] 3S. v. Bell, 49 Iowa, 440; P. v. McArdle, 5 Park. Cr. 180; [S. v. Patterson, 88 Mo. 88, 57 Am. R. 374; S. v. Brassfield, 81 Mo. 151, 51 Am. R. 234; O'Neill v. S., 85 Ga. 383, 11 S. E. R. 856; S. v. Clemons, 78 Iowa, 123, 42 Brassfield, 81 Mo. 151, 51 Am. R. 234.] 6 Post, SS 679-681. 7S. v. Wells, 48 Iowa, 671; Mann v. S., 34 Ga. 1, 5; [S. v. Abegglan, 103 Iowa, 50, 72 N. W. R. 305. But see S. v. Robertson, 121 N. C. 551, 28 S. E. R. 59.] evidence, to introduce "many witnesses, who proved that the prosecutrix was a young woman of good character for chastity, was correct and modest in her deportment, and that, until the occurrence with the defendant, she was considered a virtuous girl." "The fact," said Beck, J., "that a life of purity such as will secure and sustain a reputation for virtue renders in a degree charges of lewdness and sexual indulgence improbable is the ground upon which the evidence objected to was admitted. It is in accord with all experience, and not in conflict with legal principles." 1 § 650a. Further of the woman as witness.—The admitting of the injured woman to testify for the state accords with general rule. But some of our statutes, in diverse terms, require her to be corroborated by other evidence, to justify a conviction. For decisions on them, the reader is referred to the note.3 § 651. Whole issue. The whole issue must be proved. It will vary with the statutes; as, under some, the defendant must be shown to be a married man. Under the greater number there must be evidence of seduction and carnal intercourse." 1S. v. Shean, 32 Iowa, 88, 91, 92; [Carroll v. S., 74 Miss. 688, 22 S. R. 295, 60 Am. St. R. 539; S. v. Bryan, 34 Kan. 63, 8 Pac. R. 260. And see S. v. Clark, 9 Oreg. 406; P. v. Krusick, 93 Cal. 74, 28 Pac. R. 794; Suther v. S., 118 Ala. 88, 24 S. R. 43.] 2 Crim. Pro., I, § 1138; Bowers v. S., 29 Ohio St. 542. But see Cole v. S., 40 Tex. 147. 3 Crandall v. P., 2 Lans. 309; Kenyon v. P., 26 N. Y. 203, [84 Am. D. 177;] S. v. Kingsley, 39 Iowa, 439; S. v. Painter, 50 Iowa, 317; S. v. Smith, 54 Iowa, 743; Boyce v. P., 55 N. Y. 644; Armstrong v. P., 70 N. Y. 38; S. v. Curran, 51 Iowa, 112; S. v. Timmens, 4 Minn. 325; [Hart v. S., 117 Ala. 183, 23 S. R. 43; Cunningham v. S., 73 Ala. 51; Wilson v. S., 73 Ala. 527; S. v. Keith, 47 Minn. 559, 50 N. W. R. 691; P. v. Plath, 100 N. Y. 590, 3 N. E. R. 790, 53 Am. R. 236; P. v. Wade, 118 Cal. 672, 50 Pac. R. 841; Rice v. Com., 100 Pa. St. 28; Zabriskie v. S., 43 N. J. L. 640, 39 Am. R. 610; S. v. Bowman, 45 N. J. L. 800; S. v. Hayes, 105 Iowa, 82, 74 N. W. R. 757; S. v. Arrah, 55 Iowa, 258, 7 N. W. R. 601. Corroboration is not necessary in Missouri (S. v. Stone, 106 Mo. 1, 16 S. W. R. 890), except as to promise of marriage, when that is an element of the offense. S. v. Hill, 91 Mo. 423.] 4 For a pretty full case, see Armstrong v. P., 70 N. Y. 38. And see S. v. Haven, 43 Iowa, 181. 5 West v. S., 1 Wis. 209; [Davis v. Com., 98 Ky. 708, 34 S. W. R. 699; Norton v. S., 72 Miss. 128, 16 S. R. 264, 18 S. R. 916, 48 Am. St. R. 538; Luckie v. S., 33 Tex. Cr. R. 562, 28 S. W. R. 533; S. v. Bryan, 34 Kan. 63, 8 Pac. R. 260. Prosecuting witness must be shown to be unmarried. Mesa v. S., 17 Tex. Ap. 395; S. v. Wheeler, 108 Mo. 658, 18 S. W. R. 924; P. v. Krusick, 93 Cal. 74, 28 Pac. R. 794. See S. v. Heatherton, 60 Iowa, 175, 14 N. W. R. 230; Bailey v. S., 36 Tex. Cr. R. 44, 38 S. W. R. 185.] 6 S. v. Curran, 51 Iowa, 112; Lewis And under many there must be established a promise of marriage.' § 652. Court or jury.- The question of the woman's previous chastity is for the jury. The meanings of such words as "seduce," "prostitution," and the like, are of law for the . court, while the jury deduces the facts from the evidence. v. P., 37 Mich. 518; P. v. Clark, 33 Mich. 112; S. v. Danforth, 48 Iowa, 43, [30 Am. R. 387.] 1 Stinehouse v. S., 47 Ind. 17; Com. v. Walton, 2 Brews. 487; Cook v. P., 2 Thomp. & C. 404. 3 S. v. Bierce, 27 Conn. 319; [Bailey v. S. (Tex. Cr. R.), 30 S. W. R. 669.] 4 Carpenter v. P., 8 Barb. 603. [“Virtuous," definition by the court. O'Neill v. S., 85 Ga. 388, 11 S. E. R. 856; McTyier v. S., 91 Ga. 254, 18 S. E. 2 S. v. Carron, 18 Iowa, 372, [87 Am. R. 140.] D. 401.] 472 CHAPTER XXXIX. ADULTERY. § 653. Introduction. 654-668. Law of this offense. 669-690. The procedure. § 653. How chapter divided. We shall consider, I. The law of this offense; II. The procedure. 1. THE LAW OF THIS OFFENSE. 654. Scope of this chapter-Elsewhere. The subject of this chapter is simple adultery. The various forms of continuous and of open adultery and lascivious behavior, indictable under statutes or as common-law nuisances, are considered in other connections.1 At common law. The simple adultery to be treated of in this chapter is not indictable at the common law. But, 654a. Under statutes Their interpretation.- In a considerable number of our states, not all, a single act of adultery is made by statute indictable. The common form of the provision is that one who commits "adultery" shall be punished in a way pointed out; and then it becomes a question of law, what is adultery. Now, although adultery was not punishable in the English common-law courts, it was in the ecclesiastical;" and it was ground also for the divorce from bed and board. The word, therefore, had acquired a precise legal meaning; and, for reasons already explained, the courts, in interpreting the new statute, should give it this established meaning. It is Adultery defined.- Adultery is the voluntary sexual intercourse of a married person with one not the husband or wife." 1 Ante, § 625; post, §§ 695 et seq., 710 et seq.; Crim. Law, I, §§ 38, 39, 500, 501, 1083 et seq., 1125 et seq., 1146. 2 Crim. Law, I, §§ 38, 39, 501; Pollard v. Lyon, 1 MacAr. 296. 3 Id., $$ 38, 39; 2 Burn, Ec. Law, 402, Lewdness; Burgoyne v. Free, 2 Hagg. Ec. 456; Watson v. Thorp, 1 4 Ante, SS 96, 97. 51 Bishop, Mar., Div. & S., § 703; Helfrich v. Com., 33 Pa. St. 68, [75 Am. D. 579.] § 655. Differing judicial views.- Plain as the course of reasoning appears thus far, it has not always been in the minds of our American judges. Largely they have assumed, without inquiry, that the word "adultery" is new in the law; so that, instead of referring it to the ascertained legal meaning, they have sought to define it as a new term. Naturally, discordant opinions have been the result. Some deem the criminal offense committed whenever there is an intercourse whence a spurious issue may proceed; both parties being guilty of it, though one only is married.1 Again, it is said that "the crime of adultery consists in the illicit commerce of two persons of different sexes, one of whom, at least, is married." These are conclusions from the assumed premises, that the essence of the offense is the danger of a spurious issue. And, carrying out this theory, it is by some held that even a married man does not commit adultery where the woman is unmarried, since in this instance the issue, should there be any, is not imposed upon the marriage. If this theory is right, a woman naturally barren or past child-bearing might multiply lovers to any extent without violating the statute. No such doctrine has been judicially held, and to propose it to a court would be startling. Again, § 656. Continued. We find, in the books, language seeming to favor the proposition that, where either party is married, the carnal act is adultery in both; but probably no adjudication has affirmed that a single woman commits it by a connection with a married man." The Virginia court held that, when the woman is married and the man is not, it is only fornication 1S. v. Wallace, 9 N. H. 515; S. v. Pearce, 2 Blackf. 318; S. v. Armstrong, 4 Minn. 335. And see the reasoning in Galbraith's charge (Pennsylvania), 4 Am. Law Reg. 209. 2 S. v. Hinton, 6 Ala. 864; Hull v. Hull, 2 Strob. Eq. 174, 187; Tebb's Essay, 6, 7, 35 Law Mag. 68; Shelf. Mar. & Div. 386; Rees Cyc., tit. For nication. 3 Galbraith's Charge, 4 Am. Law Reg. 209; S. v. Lash, 1 Harrison, 380, [32 Am. D. 397;] Hood v. S., 56 Ind. 263, [26 Am. R. 21.] And see S. v. Armstrong, 4 Minn. 335. 4 S. v. Hinton, 6 Ala. 861; Hull v. Hull, 2 Strob. Eq. 174, 187. 5 The case of S. v. Hinton, supra, appears to be one of living together in adultery, between which and simple adultery there may be a distinction. The unmarried woman, however, would be guilty of the offense under the statute of Iowa. Post, § 658. Whether she would be a principal of the second degree, under a familiar common-law rule, see post, § 659. [White v. S., 74 Ala. 31; Banks v. S., 96 Ala. 78, 11 S. R. 404; Webb v. S., 24 Tex. Ap. 164, 5 S. W. R. 651.] |