example, the confessions of the unindicted accomplice,1 the suspicions and jealousies of the defendant's husband or wife,2 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,

5

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.

28. v. Crowley, 13 Ala. 172; [Graham v. S., 28 Tex. Ap. 9, 11 S. W. R. 781, 19 Am. R. 809.]

'Overstreet v. S., 3 How. (Miss.) 328. 42 Bishop, Mar., Div. & S., § 286; McKnight v. S., 6 Tex. Ap. 158; [Webb v. S., 24 Tex. Ap. 164, 5 S. W. R. 651.] 52 Bishop, Mar., Div. & S., §§ 619, 625; [S. v. Austin, 108 N. C. 780, 13 S. E. R. 219; S. v. Brecht, 41 Minn. 50, 42 N. W. R. 585; P. v. Girdler, 65 Mich. 68, 31 N. W. R. 624; S. v. Stubbs, 108 N. C. 774, 13 S. E. R. 50; S. v. Clawson, 32 Mo. Ap. 93; S. v. Briggs, 68 Iowa, 416, 27 N. W. R. 358.]

72 Bishop, Mar., Div. & S., 625, 626. 82 id., §§ 617, 618, 625, 630, 635; 2 Greenl. Ev., § 47; Com. v. Durfee, 100 Mass. 146; Com. v. Pierce, 11 Gray, 447; S. v. Marvin, 35 N. H. 22; Com. v. Lahey, 14 Gray, 91; McLeod v. S., 35 Ala. 395; P. v. Jenness, 5 Mich. 305, 320; Com. v. Morris, 1 Cush. 391; Com. v. Merriam, 14 Pick. 518, [25 Am. D. 420;] Com. v. Nichols, 114 Mass. 285, [19 Am. R. 346;] Gaylor v. McHenry, 15 Ind. 383; S. v. Potter, 52 Vt. 33; [S. v. Witham, 72 Me. 531; S. v. Kemp, 87 N. C. 538; S. v. Pippin, 88 N. C. 646; Cross v. S., 78 Ala. 430; Brevaldo v. S., 21 Fla. 789; S. v. Guest,

"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.1 "But," to quote from a previous edition of this work,2 '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,

5

§ 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," 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. S., 23 Tex. Ap. 392, 5 S. W. R. 5 Com. v. Nichols, supra. 244.]

1 Crim. Pro., I, §§ 1121–1123, 1126; S. v. Bridgman, 49 Vt. 202, [24 Am. R. 124.]

2This matter originally appeared in the first edition of Crim. Pro., I, § 17, whence it was transferred to this work.

3 Com. v. Thrasher, 11 Gray, 450. As, for example, see post, § 682; 1 Bishop, Mar., Div. & S. (6th ed.), § 381; Crim. Law, I, § 752. I might considerably add to these illustrations were it important.

6 Com. v. Horton, 2 Gray, 354, 355; Com. v. Pierce, 11 Gray, 447. In Indiana, on a single charge of incest, which was proved in time and place as laid, the particeps criminis, who had testified to this, was not allowed to strengthen the case by testifying also to incest committed at subsequent times. Lovell v. S., 12 Ind. 18. See S. v. Bates, 10 Conn. 372.

7 Crim. Pro., I, § 1128; [S. v. Witham, 72 Me. 531; S. v. Williams, 76 Me. 480.] 8 Crim. Pro. (1st ed.), I, §§ 15-18.

overruled its former decisions. "There is in each case," said the learned judge who delivered the opinion of the whole court, "a plain misapplication of the rules of evidence to the facts presented. The intent and disposition of the parties towards each other must give character to their relations, and can only be ascertained, as all moral qualities are, from the acts and declarations of the parties. It is true that the fact to be proved is the existence of a criminal disposition at the time of the act charged; but the indications by which it is proved may extend, and ordinarily do extend, over a period of time both anterior and subsequent to it. The rules which govern human conduct, and which are known to common observation and experience, are to be applied in these cases, as in all other investigations of fact. An adulterous disposition existing in two persons towards each other is commonly of gradual development; it must have some duration, and does not suddenly subside. When once shown to exist, a strong inference arises that it has had and will have continuance, the duration and extent of which may be usually measured by the power which it exercises over the conduct of the parties. It is this character of permanency which justifies the inference of its existence, at any particular point of time, from facts illustrating the preceding or subsequent relations of the parties. The rule is that a condition once proved is presumed to have been produced by causes operating in the usual way, and to have continuance till the contrary be shown. The limit, practically, to the evidence under consideration is that it must be sufficiently significant in character, and sufficiently near in point of time, to have a tendency to lead the guarded discretion of a reasonable and just man' to a belief in the existence of this important element in the fact to be proved. If too remote or insignificant, it will be rejected, in the discretion of the judge who tries the case. The fact that the conduct relied on has occurred since the filing of the libel does not exclude it; and proof of the continuance of the same questionable relations during the intervening time, as in the case at bar, will add to its weight." At the time of the present writing, this doctrine - namely, that subsequent familiarities and

1 Thayer v. Thayer, 101 Mass. 111, 113, 114, [100 Am. D. 110.] And see

Carotti v. S., 42 Miss. 334, [97 Am. D. 465.]

adulteries between the same parties, equally with the prior ones, are admissible may be deemed to be established in all our courts, as respects alike the divorce suit and the indictment. Still,

§ 683. Limiting the time.- In reason, and in some measure on authority, the court should exercise a discretion to exclude evidence of familiarities at other dates than the one in question, if too remote, whether before or after. There can be, in the nature of things, no exact rule as to this. The special nature of the familiarities, and how they are connected with the matter in issue, should enter into the question. In one case, on this ground, “ mere isolated acts" occurring eighteen months after the finding of the indictment were excluded.2 $684. Familiarities with other persons-than the alleged particeps criminis, and solicitations of their chastity, tend less directly to prove the adultery in issue. But, in a chain of circumstantial evidence, there are instances wherein, in reason, they would strengthen the link of an adulterous intent. Under the practice of the English ecclesiastical courts in divorce litigation such evidence was common, and there are instances wherein it has been received in divorce cases with us, in connection with other testimony. But the question has not been much considered in our tribunals; and, for further explanations, the reader is referred to the work on " Marriage and Divorce.' 993

§ 685. Time and place. In divorce law the particular time and place of the adulterous act need not be proved, though the judge or jury must be satisfied that it occurred at some time and some place. In criminal causes it must be shown to have transpired within the county of the indictment." But whether in other respects the same rule applies in criminal as in divorce causes we are not distinctly informed by the authorities. In

12 Bishop, Mar., Div. & S., § 625; Cole v. S., 6 Baxt. 239; S. u. Way, 5 Neb. 283; Alsabrooks v. S., 52 Ala. 24; S. v. Bridgman, 49 Vt. 202, [24 Am. R. 124;] S. v. Crowley, 13 Ala. 172.

2 S. v. Crowley, 13 Ala. 172, 175. And see S. v. Arnold, 50 Vt. 731; [P. v. Hendricksen, 53 Mich. 525, 19 N.

W. R. 169; P. v. Davis, 52 Mich. 569, 18 N. W. R. 362.]

32 Bishop, Mar., Div. & S., § 625; also § 617, 618.

42 Bishop, Mar., Div. & S., § 613; [S. v. Brecht, 41 Minn. 50, 42 N. W. R. 602.]

5 Crim. Pro., I, §§ 384, 385.

one case the trial court refused "to instruct the jury that, as the indictment charged a single act of adultery, as committed on a particular day, they must be satisfied that the defendants committed the crime on some particular day or occasion; and that it would not be sufficient for them to be satisfied, from the admissions of the parties, that they committed the crime at some time, without being able in any way to designate that time." On the other hand, it told them "that, if the evidence satisfied them beyond a reasonable doubt that the crime was committed at any time while the defendants were so living together, they might be convicted, though the particular time or occasion could not be ascertained more definitely." And this was held to be correct. It would appear never to be re

quired, in a criminal case, that the jury be satisfied of the precise day of the commission of a crime. If such day were necessary, then would be the precise hour, or minute, or second. The last could never be shown; so that, on this theory, no conviction could ever be had.

§ 686. Confessions.-The divorce law has rules as to confessions special to itself. The rules in criminal causes are also special, but they are different. One indicted for adultery may be convicted on his own confessions, and particularly so when corroborated by circumstances. Still, if the man and woman are jointly indicted, in a single count, for one act of adultery, both cannot be found guilty on the confessions of one to an act committed at a particular time, and of the other to an act at a different time. And, when the indictment is thus joint, the jury should be expressly instructed that the confession of one is not to be accepted by them as evidence against the other." § 687. The marriage. We have seen that the proofs of the marriage have already been fully explained in other con

1 Com. v. Cobb, 14 Gray, 57, 58.

22 Bishop, Mar., Div. & S., §§ 240

251.

3 Crim. Pro., I, S$ 1217-1262; [S. v. Stubbs, 108 N. C. 774, 13 S. E. R. 90.] 4S. v. Libby, 44 Me. 469, [69 Am. D. 115;] Lawson v. S., 20 Ala. 65, [56 Am. D. 182;] Frost v. Com., 9 B. Mon. 362; [S. v. Austin, 108 N. C. 780, 13 S. E. R. 219; P. v. Isham (Mich.), 67 N. W. R. 819.]

Com. v. Tarr, 4 Allen, 315. And see Bergen v. P., 17 Ill 426, [65 Am. D. 672.]

6 Com. v. Cobb, 14 Gray, 57.

7 Lawson v. S., 20 Ala. 65, [56 Am. D. 182;] Frost v. Com., supra; [S. v. Berry, 24 Mo. Ap. 466; S. v. Rinehart, 106 N. C. 787, 11 S. E. R. 572; S. v. Mims, 39 S. C. 557, 17 N. E. R. 850.] 8 Ante, § 677.