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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. $ 698. “Open and notorious." - Some of the statutes re
quire 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 2 Quartemas v. S., 48 Ala. 260; S.
3 Smith v. S., supra. Jackson v. S., 116 Ind. 464, 19 N. E. 4 Collins v. S., 14 Ala. 608. R. 330; Pruner v. Com., 82 Va. 115; 5 Sullivan v. S., 32 Ark. 187; Kin. Luster v. S., 23 Fla. 339, 2 S. R. 690; ard v. S., 57 Miss. 132. Thomas v. S., 39 Fla. 437, 22 S. R. 725; 6 S. v. Gartrell, 14 Ind. 280; (Jones S. t. Osborne, 39 Mo. Ap. 372; Bodi. v. Com., 80 Va. 18. Contra, S. v. field v. S., 86 Ala. 67, 5 S. R. 559; Ed. West, 84 Mo. 440; Ex parte Thomas, wards v. S., 10 Tex. Ap. 287.]
103 Cal. 497, 37 Pac. R. 514.] 1 Hall v. S., 53 Ala. 463. And see 7 S. v. Crowner, 56 Mo. 147; S. v. Richardson v. S., 37 Tex. 346; [Bodi. Johnson, 69 Ind. 85; P. v. Gates, 46 field v. S., 86 Ala. 67, 5 S. R. 559; Cal. 52. [Contra, S. v. Coffee, 39 Mo. Walker v. S. (Ala.), 16 S. R. 7; McAl- Ap. 56.] pine v. S., 117 Ala. 93, 23 S. R. 130.]
Follow statute. — The indictment must duly pursue the special statutory terms; 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.?
$ 700. 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.
$ 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. 3 Ante, SS 673, 687, 693; S. v. SteLashley, 84 N. C. 754; Edwards v. S., phens, 63 Ind. 542; Collum v. S., 10 10 Tex. Ap. 25; Collum v. S., 10 Tex. Tex. Ap. 708; Tucker v. S., 35 Tex. Ap. 708; (Holland v. S., 14 Tex. Ap. 113; Hopper v. S., 19 Ark. 143; Wells 182;] and cases cited to the subse. v. S., 9 Tex. Ap. 160; S. v. Gooch, 7 quent sections
Blackf. 468. 2 Crouse v. S., 16 Ark. 566; S. v. 4 Crim. Pro., I, SS 585–592. Dunn, 26 Ark, 34. And see Edwards 5 Maull v. S., 37 Ala. 160. v. S., supra
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 pun. ishable “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.'
$ 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 79. v. Lyerly, 7 Jones (N. C.), 158. see post, 8 721; (S. v. Foster, 21 W. Van The indictment, which was held good 767; Scott v. Com., 77 Va. 344; S. v. in this case, was not in the exact Foster, 26 W. Va. 272.]
terms of the text. S. v. Lashley, 84 2 Crim. Pro., I, SS 393, 394.
N. C. 754. See, for a form under the 38. v. Way, 5 Neb. 283; Crim. Pro., Alabama statute, Lawson v. S., 20 I, SS 395, 396.
Ala. 65, (56 Am. D. 182.] * Ante, $ 697.
8 Criin. Pro., II, & 952; McLeod v. 58. v. Glaze, 9 Ala 283; Hall v. S., S., 35 Ala. 395; S. v. Lashley, 84 N. C. 53 Ala. 463; Swancoat v. S., 4 Tex. 754. Ap. 105.
9 S. v. Dunn, 26 Ark. 34. 6 Crim. Pro., I, § 397.
10 S. v. Hinton, 6 Ala. 864
taining some doubts as to the correctness of the reasoning in the case cited, we prefer to rest our decision on different grounds. The offense contemplated by the statute was, not a single act, but the living together in fornication; and the facts which enter into the composition of this offense are necessarily so complicated that it is impossible to state them so that the legal conclusion of guilt will result with certainty and precision, and for this reason it is unnecessary to allege them.”ı
$ 707. Other forms — of the statute may require corresponding differences in the indictment. But the principles for constructing it are already sufficiently explained.
$ 708. Joint or several.- Though the joining in one indictment of the two participants in this guilt seems to be the appropriate course, it is not necessary. The proceeding against one alone is good.: Or, if the two are joined and one only is taken, he may be tried; and, if there is a general verdict of guilty, this will not furnish ground for arresting judgment."
$ 709. Secondly. The evidence:
In general.— The explanations of the evidence in the last two chapters are applicable equally under this head, and they cover the entire ground, except what will be obvious to every practitioner.
1 Lawson 0. S., 20 Ala. 65, 74, [56 Rinehart, 106 N. C. 787, 11 S. E. R. Am. D. 182.) See Crim. Pro., I, SS 493- 512.) 498.
* S. v. Lyerly, 7 Jones (N. C.), 158. ? As, for example, see S. v. Fore, 1 5 For proofs held not sufficient, see Iro. 378; S. v. Jolly, 3 Dev. & Bat. 110, Cohen v. S., 11 Tex. Ap. 337; (Taylor [32 Am. D. 656;] 8. v. Gartrell, 14 Ind. v. S., 36 Ark. 84; Bush v. 8., 37 Ark. 280.
215; Mynatt v. S., 8 Lea (Tenn.), 47; 3 Wasden y S., 18 Ga. 264; (S. v. Bodifield v. S., 86 Ala. 67, 5 S. R. 659.)
OPEN AND NOTORIOUS LEWDNESS.
8710. Introduction. 711-718. Law of the offense. 719-725. The procedure.
$ 710. Order of chapter.- We shall consider, L The law of the offense; II. The procedure.
I. THE LAW OF THE OFFENSE.
$ 711. At common law.– Though a single act of mere private incontinence is not indictable at the common law, one in a public place and witnessed by people is.? And, as explained in other connections, the indecent living together of men and women contrary to the order of society, and other like indecencies in the face of the public, may be sufficiently offensive and injurious to the community to be punishable as criminal nuisances.
$ 712. Under statutes.- In aid and extension of this common-law doctrine, we have statutes in various terms, containing such expressions as
“ Lewdly and lasciviously associate.” — Under the words “shall lewdly and lasciviously associate and cohabit together," the cohabitation meant was held to be, not simple incontinence in one instance, or in two instances, but a living together by the parties; the legislative purpose being, in the language of the court, “to prevent evil and indecent examples, tending to corrupt the public morals." There must be something more,
6 therefore, than mere private incontinence, continued to how
1 Ante, SS 654, 691.
• Brooks v. 8., 2 Yerg. 482; Britain ? Crim. Law, I, SS 1125-1127; Reg. v. v. S., 3 Humph. 203; Crouse v. S., 16 Elliot, Leigh & C. 103; [Vaughan v. Ark. 566; Delany v. P., 10 Mich. 241. S., 83 Ala. 55, 3 S. R. 530; Schoudel v. 5 S. v. Marvin, 12 Iowa, 499. S., 57 N. J. L. 209, 30 Atl. R. 589. 6 Com. v. Calef, 10 Mass. 153; & u : Crim. Law, I, SS 500, 501, 1146. Moore, 1 Swan (Tenn.), 136.