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the act adultery in both, together,' at the election of the power which prosecutes. Even where, by reason of special statutory terms, both parties must be guilty or neither, it is not absolutely necessary that the two be joined in the prosecution.'
$ 671. The joint indictment — must show, in some way, that the defendants committed the offense with each other; because, if open to the inference that the acts were distinct and with third persons, it will be bad for duplicity. It will be good, for example, to say that the defendants, naming them, at a time and place specified, not being then and there married to each other, but the woman having a husband living other than the man, naming the husband, did then and there have carnal knowledge together, each of the body of the other, and thereby did commit adultery."
$ 672. The several indictment,-if against the man, for a criminal connection with another's wife, under a statute making it adultery in him, may aver that, at a time and place specified, he committed adultery with a woman named, who was then and there the wife of a man other than the defendant, to wit, such a person, by then and there having carnal knowledge of her the said, etc. Or even less may suffice.
$ 673. Allegation of marriage.— The marriage being an indispensable element in the offense,' and necessary to be proved, it must, therefore, be alleged."
How, and averring name.— It is not sufficient simply to charge that the person whose marriage made the carnal act adultery was married; because this allegation would be supported by proof of a marriage between the parties implicated. Therefore it must in some way appear in averment that they
18. v. Bartlett, 53 Me. 446; Com. v. 99 Mass. 444. [Or, as the statute says, Elwell, 2 Met. 190, (35 Am. D. 398;) “ did unlawfully live and cohabit to Frost v. Com., 9 B. Monr. 362.
gether as man and wife.” S. v. 2 Ante, S 660; post, $ 702; Hopper v. Chandler, 96 Ind. 591.) S., 19 Ark. 143. [Where woman was 6 Com. v. Reardon, 6 Cush. 78; 8. v. too drunk to give consent, man may Bridgman, 49 Vt. 202, [24 Am. R. 124.] nevertheless be convicted. Com. v. And see Tucker v. S., 35 Tex. 113. Bakeman, 131 Mass. 577, 41 Am. R. ? Ante, S 666. 248.]
8 Post, S 677; Parks v. S., 8 Tex. Ap. 3 Post, $ 708
337. 4 Maull v. S., 37 Ala. 160.
9 Tucker v. S., 35 Tex. 113; Terr. v. 5 And see Com. v. Elwell, 2 Met. 190, Whitcomb, 1 Mont. 359; Miner v. P., [35 Am. D. 398;] Com. v. Thompson, 58 Ill. 59; Clay v. S., 3 Tex Ap. 499.
were not husband and wife.' The common form is, observed Shaw, C. J., that, for example, the woman “was the wife of a person named, then living; but perhaps that is not necessary. Any form of words, stating that she was the wife of some person other than the accused, would be sufficient.”? There may be room for doubt whether the name of the husband or wife can be omitted. But, on the whole, there seems to be no principle of criminal pleading rendering it necessary to mention the name of a third person in such a connection; and we have forms in which the name is not mentioned.
$ 674. “ Adultery" or "carnal knowledge."- Commonly the indictment alleges that the defendant “ had carnal knowledge,” etc. But in Pennsylvania it was adjudged sufficient to charge that he “did commit adultery with a certain " person named. Said Lowrie, C. J.: “Commit adultery' does not merely imply, but expresses, carnal knowledge; for that is its very meaning.” In Alabama, also, this form of the allegation appears to be approved. It is the common form in the civil suit for divorce. Some other analogies favor it; and, though it is a blending of law and fact hardly consistent with nice pleading, it is no more objectionable than various forms of averment always deemed sufficient in other cases.
$ 675. Knowledge of facts.- Though a mistake of the person, or ignorance of a subsisting marriage, or the like, will in some circumstances excuse the carnal act, the indictment need not, in the absence of special terms in the statute, negative such mistake or aver knowledge. Matter of this sort is simply for defense.'
1 Moore v. Com., 6 Met. 243; Tucker motion in arrest of judgment. [Col. v. S., supra; Clay v. S., supra; Com. lum v. S., 10 Tex. Ap. 708; Hildreth v. Corson, 4 Pa Law Jour. R. 271. v. S., 19 Tex. Ap. 195.]
2 Moore v. Com., supra, at p. 244; 4 Helfrich v. Com., 33 Pa. St. 68, 70, [Names v. S., 20 Ind. Ap. 168, 20 N. E. 71, [75 Am. D. 579.] R. 401; S. v. Searle, 56 Vt. 516; Crane 38. v. Hinton, 6 Ala. 864; Lawson v. P., 168 Ill. 395, 48 N. E. R. 54.] V. S., 20 Ala. 65, [56 Am. D. 182;]
3 Train & Heard, Prec. 23, 24; Whart. Maull v. S., 37 Ala. 160. Prec. (2d ed.), pl. 995 et seq. See also 6 2 Bishop, Mar., Div. & S., 8 603. S. v. Hutchinson, 36 Me. 261; S. v. ? Crim. Pro., I, SS 329-334, 514, 515. Hinton, 6 Ala. 864; S. v. Clinch, 8 8 Ante, SS 663-665. Iowa, 401; Collum v. S., 10 Tex. Ap. 9 Crim. Pro., I, SS 513, 521-525, 637, 708. The name was not given in Com. 638; Com. v. Elwell, 2 Met. 190, (35 v. Tompson, 2 Cush. 551, and the in- Am. D. 398;] Fox v. S., 8 Tex, Ap. dictment was adjudged good on 329, [30 Am. R. 144)
$ 676, Then and there. It was in one case adjudged inadequate to say that the defendant, at a place and on a day named, committed adultery “with one E., the wife of one F., she, the said E., being a married woman and the lawful wife of the said F.; " because, "to the fact that she was a married woman and the wife of another, no time is averred." This is holding a well-known rule strictly;? and probably, in some of our states, under the modifying influence of statutes or the liberalization of the judicial practice, the decision would be the other way
8 677. Secondly. The evidence:
What prove -- (Carnal act – Marriage).- The two facts to be established are the carnal act and the marriage.
Elsewhere--Here.-- The author, in “Marriage and Divorce," fully treated of the evidence of both;: including, as to the marriage, what is special to the present criminal issue. Also as to the marriage, in the chapter on polygamy in the present volume various points are brought forward, applicable as well to this offense as to that. As, in general, the proofs of an issue are the same in criminal causes and in civil, little remains for this connection but to call attention to what is special to the criminal issue in the proofs of adultery, and to some other things particularly important to be borne in mind in these cases.
$ 678. Nature of evidence of carnal act.— Though it is legally competent to prove the carnal act, the same as any other crime, by an eye-witness, such testimony is seldom to be obtained. The proofs, therefore, are almost always circumstantial.? Still the evidence must come within established rules; 8 as, for
1S. v. Thurstin, 35 Me. 205, [58 Am. 620; S. v. Poteet, 8 Ire. 23: S. v. Bridg. D. 695.)
man, 49 Vt. 202, [24 Am. R. 124;] Com. 2 Crim. Pro., I, SS 408, 411.
v. Franklin, 6 Gray, 346; S. v. Green, 31 Bishop, Mar., Div. & S., SS 408- Kirby, 87, 88; Com. v. Gray, 129 Mass. 545; 2 id., SS 612-647.
474, (37 Am. R. 378;] Richardson v. 4 1 Bishop, Mar., Div. & S., SS 441, S., 34 Tex. 142; Smelser v. S., 31 Tex. 442, 485, 490-502. And see Com. v. 95; Com. v. Bowers, 121 Mass. 45; 8. Belgard, 5 Gray, 95; S. v. Libby, 44 v. Waller, 80 N. C. 401; S. v. Way, 6 Me. 469, 479, [69 Am. D. 115.]
Vt. 311; [S. v. Eliason, 91 N. C. 564.] 5 Ante, SS 607–611.
8 Com. v. O'Connor, 107 Mass. 219; 6 Crim. Pro., I, 8 1046.
8. v. Crowley, 13 Ala. 172; Lawson v. 72 Bishop, Mar., Div. & S., SS 614- S., 20 Ala. 65, (56 Am. D. 182.]
example, the confessions of the unindicted accomplice, the suspicions and jealousies of the defendant's husband or wife, reputation in the neighborhood, and the opinion of a witness that adultery was or was not committed at a time testified to,' are severally inadmissible.
$ 679. Intent and opportunity.- One of the common forms of the circumstantial evidence consists of showing a purpose or inclination to commit adultery and the opportunity; that is, an adulterous mind in the accused, the same in the person with whom the offense is charged, and a time and place. And the inference is more or less readily drawn, that what was sought, and could be, was.The path to this conclusion can be trodden only step by step; while yet, if the last step is not taken, the preceding ones are of no avail. Some of the steps are,–
Woman unchaste — (Bawdy-house). In connection with other facts, it may be shown that a woman with whom adultery is alleged to have been committed is of bad character and reputation for chastity; or, what may be still stronger, that a house visited by the defendant is a bawdy-house. Again,
? § 680. Other like acts.— Where the attempt is to prove adultery at a particular time and place, familiarities between the same parties tending thereto, or adultery itself, at a prior time and in another or the same place, may be shown in aid of the conclusion. And within familiar principles, it is no objection that
1 Spencer v. S., 31 Tex. 64; S. v. Mc. Am. R. 378;] Blackman v. S., 36 Ala. Guire, 50 Iowa, 153. And see Gore v. 295. S., 58 Ala. 391.
7 2 Bishop, Mar., Div. & S., 625, 626. 28. v. Crowley, 13 Ala. 172; (Gra- 8 2 id., SS 617, 618, 625, 630, 635; 2 ham v. S., 28 Tex. Ap. 9, 11 S. W. R. Greenl. Ev., § 47; Com. v. Durfee, 100 781, 19 Am. R. 809.]
Mass. 146; Com. v. Pierce, 11 Gray, Overstreet v. 8., 3 How. (Miss.) 328. 447; S. v. Marvin, 35 N. H. 22; Com. 4 2 Bishop, Mar., Div. & S., § 286; v. Lahey, 14 Gray, 91; McLeod v. S., McKnight v. S., 6 Tex. Ap. 158; [Webb 35 Ala. 395; P. v. Jenness, 5 Mich. 305, v. S., 24 Tex. Ap. 164, 5 S. W. R. 651.] 320; Com. v. Morris, 1 Cush. 391;
52 Bishop, Mar., Div. & S., SS 619, Com. v. Merriam, 14 Pick. 518, (25 625; (S. v. Austin, 108 N. C. 780, 13 S. Am. D. 420;] Com. v. Nichols, 114 E R. 219; S. v. Brecht, 41 Minn. 50, Mass. 285, [19 Am. R. 346;] Gaylor v. 42 N. W. R. 585; P. v. Girdler, 65 McHenry, 15 Ind. 383; S. v. Potter, Mich. 68, 31 N. W. R. 624; S. v. Stubbs, 52 Vt. 33; (S. v. Witham, 72 Me. 531; 108 N. C. 774, 13 S. E. R. 50; S. v. S. v. Kemp, 87 N. C. 538; S. v. Pippin, Clawson, 32 Mo. Ap. 93; 8. v. Briggs, 88 N. C. 646; Cross v. S., 78 Ala. 430; 68 Iowa, 416, 27 N. W. R. 358.] Brevaldo v. S., 21 Fla. 789; S. v. Guest, 6 Com. v. Gray, 129 Mass. 474, (37 100 N. C. 410, 6 S. E. R. 253; Funder
thus another crime than the one charged is also made to appear. “But,” to quote from a previous edition of this work,? “strangely enough the Massachusetts court further held, on an indictment for adultery, that, if the anterior familiarities extend so far or are of such character as to show adultery actually committed on this previous occasion, the evidence of them – that is, of the previous adultery — is not admissible; ' according to which doctrine, if the evidence is a little weak, yet tending remotely to establish the crime, it may be submitted to the jury; but, if it is a little stronger and tends more clearly to the same result, it must be excluded !” After this criticism appeared, the same tribunal, yielding to its force, reversed the doctrine; but, as is customary with a part of this court,' making no acknowledgment or allusion to the author or his work, that had enabled it to efface, before becoming indelible, a blot from the jurisprudence of the state. Again,
$ 681. Acts subsequent.-- The Massachusetts court has denied that familiarities or adultery subsequent to the adultery charged is admissible against the defendant. This doctrine is less palpably contrary to the authorities' than the other, which was afterward abandoned as just stated. And, in reason, the subsequent ill-conduct is perhaps less conclusive than the prior. But,
$ 682. Continued. In the first edition of " Criminal Procedure,” 8 in passages transferred to the first edition of the present work, the author pointed out that, in principle, subsequent acts do tend to prove those charged. And the Massachusetts court, following his views, yet not acknowledging their source, burg v. 8., 23 Tex. Ap. 392, 5 S. W. R. 5 Com. v. Nichols, supra. 214.)
6 Com. v. Horton, 2 Gray, 354, 355; Crim. Pro., I, SS 1121-1123, 1126; 8. Com. v. Pierce, 11 Gray, 447. In Inv. Bridgman, 49 Vt. 202, [24 Am. R. diana, on a single charge of incest, 124.)
which was proved in time and place 2 This matter originally appeared in as laid, the particeps criminis, who the first edition of Crim. Pro., I, § 17, had testified to this, was not allowed whence it was transferred to this to strengthen the case by testifying work.
also to incest committed at subse 3 Com. v. Thrasher, 11 Gray, 450. quent times. Lovell v. S., 12 Ind. 18.
4 As, for example, see post, $ 682; 1 See S. v. Bates, 10 Conn. 372. Bishop, Mar., Div. & S. (6th ed.), S 381; 7 Crim. Pro., 1, $ 1128; (S. v. Witham, Crim. Law, I, S 752. I might con- 72 Me. 531; S. v. Williams, 76 Me. 480.] siderably add to these illustrations 8 Crim. Pro. (1st ed.), I, SS 15-18. were it important.