the circumstances, will constitute the offense; yet the indictment does not negative a marriage with her. And so in fornication, in the absence of special statutory terms, is the little authority which we have." § 694. Other questions. In most other respects this offense is identical with adultery, treated of in the last chapter. And so the elucidations there will render unnecessary anything fur ther here. 1 Crim. Law, II, § 1119. 2 Crim. Pro., II, §§ 949, 956. Stephens, 63 Ind. 542; Bicknell, Crim. 3S. v. Gooch, 7 Black£. 468; S. v. 754. 495 § 695. Order of chapter.- We shall consider: I. The law of the offense; II. The procedure. I. THE LAW OF THE OFFENSE. § 696. Statutes-Relations of subject. The subject of this chapter is a sort of continuation of the discussions of the last two. It is adultery and fornication repeated. The statutes are in terms too diversified to render profitable a minute discussion. They contain such expressions as "living together and carnal intercourse with each other," "habitual carnal intercourse with each other without living together," "live together as husband and wife without being married," 2 "live together in adultery or fornication," "living together in unlawful cohabitation." § 697. Elements of offense.- None of these statutes are violated by a mere single act of carnal commerce," and it will not be otherwise though the act transpires in pursuance of a prior arrangement. Nor will mere occasional acts, in private, suffice. Still, it is legally possible for a "living together in 1 Edwards v. S., 10 Tex. Ap. 25; Parks v. S., 4 Tex. Ap. 134. For changes in the Texas provisions, see Collum v. S., 10 Tex. Ap. 708. And see Wolff v. S., 6 Tex. Ap. 195; [Granberry v. S., 61 Miss. 440.] 2 Hopper v. S., 19 Ark. 143; Sullivan v. S., 32 Ark. 187; [Pinson v. S., 28 Fla. 735, 9 S. R. 706.] 3 Hall v. S., 53 Ala. 463; Quartemas v. S., 48 Ala. 269; [Powell v. S., 12 Tex.Ap. 238; Van Dolsen v. S., 1 Ind. Ap. 108, 27 N. E. R. 440.] 4 Carotti v. S., 42 Miss. 334, [97 Am. D. 465.] 5 McLeland v. S., 25 Ga. 477; [Bird v. S., 27 Tex. Ap. 559, 11 S. W. R. 641; Thomas v. S., 28 Tex. Ap. 300, 12 S. W. R. 1098.] 6 Smith v. S., 39 Ala. 554; [Turney v. S., 60 Ark. 259, 29 S. W. R. 843.] 7 Wright v. S., 8 Blackf. 385; Searls v. P., 13 Ill. 597; Collins v. S., 14 Ala. 608; Carotti v. S., 42 Miss. 334; Collum v. S., 10 Tex. Ap. 708; Swancoat v. S., 4 Tex. Ap. 105; Parks v. S., 4 adultery" to be committed in a single day; as, if the parties came together in cohabitation, contemplating its continuance, yet it is broken off by a prosecution, or fear, or other cause.' The living must be in the same house, in distinction from two wholly distinct habitations; but it need not be exclusive and continuous. For example, a married man who visits and remains with a lewd woman one night in every week for seven months, at her residence half a mile from his own, commits this offense, though he does not otherwise abandon his own home. To "cohabit together as husband and wife" requires a common habitation, but there need be no profession of marriage.5 § 698. "Open and notorious."-Some of the statutes require the adultery or fornication to be "open and notorious." The offense they create does not differ greatly from that to be treated of in the next chapter. There must, under these statutes, be something like a living together, in distinction from occasional incontinence. And such their cohabitation must be public, in the face of society." II. THE PROCEDURE. § 699. Course of discussion. We shall consider, first, the indictment; secondly, the evidence. First. The indictment: The last two chapters — contain directions equally applicable there and here. Beyond which— Tex. Ap. 134; Quartemas v. S., 48 Ala. 269; Clouser v. Clapper, 59 Ind. 548; Morrill v. S., 5 Tex. Ap. 447; Schwall v. S. (Miss.), 21 S. R. 660; Jackson v. S., 116 Ind. 464, 19 N. E. R. 330; Pruner v. Com., 82 Va. 115; Luster v. S., 23 Fla. 339, 2 S. R. 690; Thomas v. S., 39 Fla. 437, 22 S. R. 725; S. v. Osborne, 39 Mo. Ap. 372; Bodifield v. S., 86 Ala. 67, 5 S. R. 559; Edwards v. S., 10 Tex. Ap. 287.] 1 Hall v. S., 53 Ala. 463. And see Richardson v. S., 37 Tex. 346; [Bodifield v. S., 86 Ala. 67, 5 S. R. 559; Walker v. S. (Ala.), 16 S. R. 7; McAlpine v. S., 117 Ala. 93, 23 S. R. 130.] 2 Quartemas v. S., 48 Ala. 260; S. v. Glaze, 9 Ala. 283. But see Parks v. S., 4 Tex. Ap. 134. Smith v. S., supra. 4 Collins v. S., 14 Ala. 608. 5 Sullivan v. S., 32 Ark. 187; Kinard v. S., 57 Miss. 132. 6 S. v. Gartrell, 14 Ind. 280; [Jones v. Com., 80 Va. 18. Contra, S. v. West, 84 Mo. 440; Ex parte Thomas, 103 Cal. 497, 37 Pac. R. 514.] 7 S. v. Crowner, 56 Mo. 147; S. v. Johnson, 69 Ind. 85; P. v. Gates, 46 Cal. 52. [Contra, S. v. Coffee, 39 Mo. Ap. 56.] Follow statute.- The indictment must duly pursue the special statutory terms;1 as, "Live together," etc.- Where it is made punishable "if any man and woman shall live together as husband and wife without being married," the allegation against a single defendant that he did unlawfully and wickedly bed and live with a person named is inadequate, because not charging a living together as husband and wife without being married." 8700. Marriage. The question as to alleging or negativing a marriage, and of proving either fact, under the differing statutory terms, is sufficiently discussed in the preceding chapters.3 § 701. Certainty —(“ Or,” “ And ").— On a statute in alternative words, as "adultery or fornication," it is not, for reasons explained in another connection, good pleading to charge that the parties lived together in "adultery or fornication."" Nor, it is believed, would it do to say "adultery and fornication;" for then the count would be incongruous and double. A ready method of escape from this dilemma, where it is desirable to adapt the indictment to either result of the proofs, is to insert two counts; the one for living in adultery, and the other for living in fornication. The Alabama court has held that, on a single count for living together in adultery, there cannot be a conviction for so living in fornication; the offenses being different, and not included the one in the other. On principle, while this doctrine may be correct under some forms of the indictment, it would seem perfectly practicable to draw a count in such terms as to avoid all objections, whereon the conviction would be for living in adultery if the marriage was proved, or in fornication if it was not. § 702. "Together."- The word "together," if in the statute, must in some way be covered by the allegation. It is insufficient to say that the defendants "did live in a state of 1S. v. Johnson, 69 Ind. 85; S. v. Lashley, 84 N. C. 754; Edwards v. S., 10 Tex. Ap. 25; Collum v. S., 10 Tex. Ap. 708; [Holland v. S., 14 Tex. Ap. 182;] and cases cited to the subsequent sections. 2 Crouse v. S., 16 Ark. 566; S. v. Dunn, 26 Ark. 34. And see Edwards v. S., supra. Ante, §§ 673, 687, 693; S. v. Stephens, 63 Ind. 542; Collum v. S., 10 Tex. Ap. 708; Tucker v. S., 35 Tex. 113; Hopper v. S., 19 Ark. 143; Wells v. S., 9 Tex. Ap. 160; S. v. Gooch, 7 Blackf. 468. 4 Crim. Pro., I, §§ 585–592. 5 Maull v. S., 37 Ala. 160. 6 Smitherman v. S., 27 Ala. 23. adultery," etc.; because, observed A. J. Walker, C. J., the wrongful things done "do not appear from the indictment to have been perpetrated by any joint act; but, for aught disclosed, may have been altogether distinct, neither defendant participating in the criminal act of the other."1 - § 703. Allegation of time-(Continuando, or not). This is a continuing offense; therefore it may be laid with a continuando, or perhaps as committed between one day and another named. Still, since its complete perpetration in a single day is legally possible, it may equally well be charged as on one day, and the proof may be of acts done on any number of days. § 704. "Cohabit," etc.- Where the statute makes it punishable "if any man and woman, not being married to each other, shall lewdly and lasciviously associate, bed and cohabit together," an indictment is good which simply charges that, at the time and place, the defendants, not being married to each other, did lewdly and lasciviously associate, bed and cohabit together." § 705. Alleging sex.- The sex, whether of the male or female, need not be alleged. Still, there are states wherein, by reason of special statutory terms, or exceptional views of the court, this is required.9 § 706. "Live together."— These statutory words need only be covered by the indictment, without expansion. "If," said Goldthwaite, J., "a single act of fornication was indictable, it might perhaps be necessary to allege the constituents which make up the offense; although, even then, upon the reasoning of the case of The State v. Hinton,10 it would be sufficient to charge the offense in the terms of this indictment. But, enter 1 Maull v. S., 37 Ala. 160, 161. And see post, § 721; [S. v. Foster, 21 W. Va. 767; Scott v. Com., 77 Va. 344; S. v. Foster, 26 W. Va. 272.] 2 Crim. Pro., I, SS 393, 394. 7S. v. Lyerly, 7 Jones (N. C.), 158. The indictment, which was held good in this case, was not in the exact terms of the text. S. v. Lashley, 84 N. C. 754. See, for a form under the 3S. v. Way, 5 Neb. 283; Crim. Pro., Alabama statute, Lawson v. S., 20 I, §§ 395, 396. • Ante, § 697. 'S. v. Glaze, 9 Ala. 283; Hall v. S., 53 Ala. 463; Swancoat v. S., 4 Tex. Ap. 105. 6 Crim. Pro., I, § 397. Ala. 65, [56 Am. D. 182.] 8 Crim. Pro., IL, § 952; McLeod v. S., 35 Ala. 395; S. v. Lashley, 84 N. C. 754. 9 S. v. Dunn, 26 Ark. 34. 10 S. v. Hinton, 6 Ala. 864. |