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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

· Thayer v. Thayer, 101 Mass. 111, Carotti v. S., 42 Miss. 334, [97 Am. D. 113, 114, [100 Am. D. 110.) And see 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.?

$ 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 cir. cumstantial 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 Di


8 685. 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

1 2 Bishop, Mar., Div. & S., S 625; W. R. 169; P. v. Davis, 52 Mich. 569, Cole v. S., 6 Baxt. 239; S. v. Way, 5 18 N. W. R. 362.] Neb. 283; Alsabrooks v. S., 52 Ala. 3 2 Bishop, Mar., Div. & S., 8 625; 24; S. v. Bridgman, 49 Vt. 202, [24 also SS 617, 618. Am. R. 124;] S. v. Crowley, 13 Ala. 4 2 Bishop, Mar., Div. & S., $ 613; 172.

[S. v. Brecht, 41 Minn, 50, 42 N. W. 2 S. v. Crowley, 13 Ala. 172, 175. R. 602.] And see S. v. Arnold, 50 Vt. 731; [P. 5 Crim. Pro., I, SS 384, 385. v. Hendricksen, 53 Mich. 525, 19 N.

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 required, 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.

8 686. 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

Com. v. Cobb, 14 Gray, 57, 58. o Com. v. Tarr, 4 Allen, 315. And

2 2 Bishop, Mar., Div. & S., SS 240- see Bergen v. P., 17 IIL 426, [65 Am. 251.

D. 672.] 3 Crim. Pro., I, SS 1217-1262; (S. v. 6 Com. v. Cobb, 14 Gray, 57. Stubbs, 108 N. C. 774, 13 8. E. R. 90.) ? Lawson v. S., 20 Ala. 65, (56 Am.

48. v. Libby, 44 Me. 469, [69 Am. D. D. 182:] Frost v. Com., supra; (S. v. 115;) Lawson v. S., 20 Ala. 65, (56 Am. Berry, 24 Mo. Ap. 466; S. v. Rinehart, D. 182;] Frost v. Com., 9 B. Mon. 362; 106 N. C. 787, 11 8. E. R. 572; S. v. {8. v. Austin, 108 N. C. 780, 13 S. E. R. Mims, 39 S. C. 557, 17 N. E. R. 850.) 219; P. v. Isham (Mich.), 67 N. W. R. 8 Ante, S 677. 819.]


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nections. What is technically termed a fact of marriage, in distinction from proofs by cohabitation and repute, must, except where statutes have otherwise provided, be shown. Ordinarily, and by most opinions, confessions are admissible to the marriage, as to the other parts of the case. But they must be the confessions of the particular party, not of the other party, or of the particeps criminis.'

$ 688. The witnesses.— The general rules concerning the witnesses in criminal cases apply in this issue. Thus,

Husband and wife.- Under the common law the husband or wife cannot testify against the other, either to the illicit conduct or the fact of marriage. Not even can the married partner of the unindicted participant in the adultery be admitted to prove it. And if several persons are proceeded against for a conspiracy to charge the wife of one of them with adultery, she cannot be a witness.? So far is this doctrine carried that the wife has even been held incompetent to prefer on oath a complaint before a magistrate for the husband's adultery. In some of our states, by statute, the law is otherwise, and the prosecution can be only on her complaint;: though, after it is commenced, it can be carried on without

11 Bishop, Mar., Div. & S., SS 442, 73; 8. v. Armstrong, 4 Minn. 335; 482 et seq.; Wood v. 8., 62 Ga. 406; [Thomas v. 8., 14 Tex. Ap. 70.] Com. v. Holt, 121 Mass. 61; P. v. Ben- 6 S. v. Welch, 26 Me. 30, [45 Am. D. nett, 39 Mich. 208; Com. v. Belgard, 94;) 8. v. Gardner, 1 Root, 485; Cot5 Gray, 95; (S. v. Behrman, 114 N. C. ton v. S., 62 Ala. 12; Com. v. Gordon, 797, 19 S. E. R. 220, 25 L. R. A. 449; 2 Brews. 569; Com. v. Sparks, 7 Allen, Webb v. S., 24 Tex. Ap. 164, 5 S. W. 534. See Crim. Pro., 1, $ 1019; [Com. R. 651; Williams v. S., 86 Ga. 518, 12 v. Mosier, 135 Pan St. 221, 19 Atl. R. S. E. R. 743; Owens v. S., 94 Ala. 97, 943.] 10 S. R. 669; Banks v. S., 96 Ala, 78, 78. v. Burlingham, 15 Me 104; 11 S. R. 404; Lord v. S., 17 Neb. 526, Crim. Pro., I, § 1019. 23 N. W. R. 507; S. v. Manley, 95 N. C. 8 S. v. Berlin, 42 Me. 572; Com. v. 661.)

Jailer, 1 Grant (Pa.), 218. See Crim. 2 1 Bishop, Mar., Div. & S., SS 497- Pro., I, SS 230-232; (P., Long v. Mag502, 544, 545; ante, $ 609; Cameron erstadt (Ill.), 32 Chic. Leg. N. 35. v. S., 14 Ala. 546, [48 Am. D. 111;) S. 9 Crim. Pro., I, § 232; 8. v. Wilson, v. Medbury, 8 R. I. 543; [Boger v. S., 22 Iowa, 364; P. v. Knapp, 42 Mich. 19 Tex. A p. 195; P v. Imes (Mich.), 68 267, [36 Am. R. 438; S. v. Mahan, 81 N. W. R. 157; Owers v. S., 94 Ala. 97, Iowa, 121, 46 N. W. R. 855; P. v. 10 S. R. 669.]

Payment, 109 Mich. 559, 67 N. W. R. 3 Com. v. Thompson, 99 Mass. 444. 689; P. v. Stokes, 71 Cal. 263, 12 Pac. See S. v. Bowe, 61 Me. 171.

R. 71; P. v. Isham (Mich.), 67 N. W. 4 Crim. Pro., I, SS 1135–1187. R. 819; Boyer v. S., 19 Tex. Ap. 91; • Id., $ 1151; Mills v. U. S., 1 Pin. S. v. Coffee, 39 Mo. Ap. 56; Bush.

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her presence or consent,' and she need not go before the grand jury. Beyond this, we have statutes under which it is com. petent for husband and wife to testify against each other “in a criminal prosecution for an offense committed by one against the other;” and adultery is deemed to be within the provision:

Particeps criminis. – A mistress is not, like a wife, incompetent;' so that an unindicted particeps criminis may be a witness. 6 But this witness is an accomplice within the rule? requiring the testimony to be corroborated.

$ 689. Province of jury.—The effect of the testimony, equally with its credibility, is, as in other cases, for the jury. It was therefore error for the court on a trial for fornication to instruct them that if they believed the parties were found in bed together, the room-door closed, no one else present, the woman a prostitute, and the defendant in the habit of visiting her, they were bound to find him guilty. Conclusive as the evidence was, the jury, not the court, should draw the inference.'

§ 690. Marriage not proved — (Fornication).- Where fornication is indictable, and the proof of the marriage fails, there may be a conviction for this lighter offense,'' if the allegations

а of the indictment are adequate." v. Workman, 64 Iowa, 205, 19 N. 4 Crim. Pro., I, § 1154; Dennis v. W. R. 210; S. v. Briggs, 68 Iowa, Crittenden, 42 N. Y. 542. 416, 27 N. W. R. 358; S. v. Donovan, 5 Crim. Pro., I, § 1019; Rutter v. S., 61 Iowa, 278, 16 N. W. R. 130; P. v. 4 Tex. Ap. 57. And see Boothe v. S., Dalrymple, 55 Mich. 519, 22 N. W. R. 4 Tex. Ap. 202. 20; S. v. Henke, 58 Iowa, 457, 12 N. 6 S. v. Colby, 51 Vt. 291; P. v. Knapp, W. R. 477; S. v. Stout, 71 Iowa, 343, 42 Mich. 267; Ketchingman v. S., 6 32 N. W. R. 372; S. v. Maas, 83 Iowa, Wis. 426. See Spencer v. S., 31 Tex. 46, 49 N. W. R. 1037; Filer v. Smith, 64. 96 Mich. 347, 55 N. W. R. 999, 35 Am. 7 Crim. Pro., I, SS 1156-1175. St. R. 663; Re Smith, 2 Okl. 153, 37 8 Merritt v. S., 10 Tex. Ap. 402. Pac. R. 1099.]

9 Ellis v. S., 20 Ga. 438. 1S. v. Baldy, 17 Iowa, 39; [S. v. 10 S. v. Cowell, 4 Ire. 231; Crim. Law, Briggs, 68 Iowa, 416, 27 N. W. R. 358.] 1, $ 795; Respublica v. Roberts, 2 Dall. 2 S. v. Dingee, 17 Iowa, 232.

124, 1 Yeates, 6; S. v. Hinton, 6 Ala. 3 Roland v. S., 9 Tex. Ap. 277; Mor- 864. Otherwise now in Alabama. rill v. S., 5 Tex. Ap. 447; S. v. Bennett, Smitherman v. S., 27 Ala. 23. 31 Iowa, 24; [Bayliss v. P., 46 Mich. 11 Post, SS 692, 693; Com. v. Murphy, 221; S. v. Brecht, 41 Minn. 50, 42 N. 2 Allen, 163. W. R. 602; Wilson v. Daboll, 104 [NOTE.— The following cases are Mich. 155, 62 N. W. R. 293; S. v. cited as examples of variance in Smith, 108 Iowa, 440, 79 N. W. R. 115; proof: Randle v. S., 12 Tex. Ap. 250; Com. v. Clifford, 145 Mass. 97, 13 N. Bevins v. S., 12 Tex. Ap. 394; HenderE. R. 345.]

son v. S., 105 Ala. 139, 16 S. R. 927.]

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