ordered on the verdict. P. v. Brown, 34 Mich. 339, 22 Am. Rep. 531, Kn. 334.

Spouse supposed to be dead: R. v. Tolson, § 35; C. v. Mash, § 53; C. v. Thompson, § 53. Spouse supposed to be divorced: Squire v. State, § 53. Marriage supposed to be void S. v. Goodenow, § 54; S. v. Zichfeld, § 54. Bigamy as religious duty: Reynolds vs. U. S., § 37.

ADULTERY.

§ 188. In General.

(Mass. Sup. Judicial Ct., 1839.) With Single Woman. On indictment and trial for adultery the jury found specially: "The jury find the defendant guilty of having had sexual intercourse with Eliza Foster, the person named in the indictment, she at the same time being an unmarried woman, and the defendant being a married man and having a lawful wife at the time then living." The defendant moved in arrest of judgment, the motion was overruled, and he excepted. DEWEY, J. By the civil law, adultery could only be committed by the unlawful sexual intercourse of a man with a married woman. Thus, as is stated in Wood's Institute, 272, adultery is a carnal knowledge of another man's wife, and the connection of a married man with a single woman does not make him guilty of the crime of adultery. On the other hand, in the English ecclesiastical courts it is held that the offense of adultery is established by showing that the husband has had illicit intercourse with any person, and no distinction is taken whether the alleged offense was committed with a married or unmarried female. Such is the general rule in cases of divorce granted for the cause of adultery, not only in England, but also, as I suppose, throughout the United States. [Here his honor reviewed the statutes of the state, using the same words in speaking of adultery as a crime and as ground for divorce.] Whatever, therefore, may have been the original meaning of the term adultery, it is very obvious that we have in this commonwealth adopted the definition given to it by the ecclesiastical courts, and this not merely in relation to divorces, but also as descriptive of a public crime. We hold the infidelity of the husband as well as that of the wife, the highly aggravated offense, constituting the crime of adultery. The court are satisfied that by the proper construction of the term adultery as used in our statutes, the offense is committed by a married man who shall have sexual intercourse with an unmarried woman. Applying this rule of law to the facts specially found by the jury, they establish the crime of adultery to have been committed by the prisoner.

[New trial ordered on another ground.] C. v. Call, 21 Pick. 509, 32 Am. Dec. 284-n. Kn. 329.

As provocation for manslaughter: Manning's Case. § 106: Maher v. P., § 106. At common law, single man with married woman: Respublica v. Roberts. § 6. Married man with single woman: Anderson v. C., § 6. Soliciting, whether criminal: S. v. Avery, § 60; S. v. Butler, § 60. Misdemeanor or felony by statutes varying in different states: S. v. Butler, § 60; S. v. Cooper, § 115, on charge of burglary.

MISCEGENATION.

§ 189. Defined. Miscegenation is inter-marriages of races in violation of statute. See P. v. Brown, § 187.

INCEST.

§ 190. Defined, Etc. Incest is sexual intercourse between persons so nearly related that marriage between them would be illegal.

Attempt to contract incestuous marriage is not shown by proof of eloping with niece and sending for magistrate to perform ceremony: P. v. Murray, § 62.

(Wash. Sup. Ct., 1899.) By Force. GORDON, C. J. The defendant was convicted of the crime of incest. For a reversal of the judgment he relies upon a single assignment of error. The question presented is, can the crime of incest be committed without the concurrent consent of both parties to the sexual act? That it cannot has been held in numerous cases: DeGroat v. P., 39 Mich. 124; Baumer v. S., 49 Ind. 544; S. v. Thomas, 53 Iowa 214, 4 N. W. 908; S. v. Jarvis, 20 Ore. 437, 26 Pac. 302; Yeoman v. S., 21 Neb. 171, 31 N. W. 669. The doctrine upon which these cases rest is that it is a joint offense, and can be committed only by consenting parties; that, to constitute the crime, both parties must be guilty; that there must be a union of minds as well as of actions; that force and want of consent exclude incest, and what is rape cannot be incest. But we are disposed to agree with Mr. Bishop, that, in principle, the doctrine has no just foundation. Bish. St. Cr. § 660. The holding in S. v. Thomas, above, was by a divided court three to two; Beck, J., dissenting in an opinion of remarkable clearness, in which Day, J., concurred. The decision in that case seems to us to have been substantially overruled in the later cases of S. v. Chambers, 87 Iowa 1, 53 N. W. 1090, 43 Am. St. Rep. 349; S. v. Hurd, 101 Iowa 391, 70 N. W. 613; S. v. Kouhns, 103 Iowa 720, 73 N. W. 353. * * * In our view the consent or non-consent of the female is of no importance except as it bears on the question of the weight or credit to be given her testimony, as being or not being that of an accomplice. * This view is supported by the following authorities: S. v. Hurd, above; P. v. Barnes, 2 Ida. 148, 9 Pac. 532; P. v. Kaiser, 119 Cal. 456, 51 Pac. 702; Mercer v. S., 17 Tex. App. 452; S. v. Kouhns, above; C. v. Goodhue, 2 Metc. (Mass.) 193; C. v. Bakeman, 131 Mass. 577; 10 Am. & Eng. Enc. L. 341. Judgment affirmed. S. v. Nugent, 20 Wash. 522, 56 Pac. 25, 72 Am. St. Rep. 133.

**

*

(Tex. Ct. Crim. App., 1898.) Proof-Legitimacy. Appellant was convicted of incest on an indictment in three counts: 1, for statu

tory rape; 2, for rape by force; and 3, for incest.

蓉

HENDERSON,

J. The jury acquitted appellant of rape, and therefore of the force necessary to constitute rape. They found that she had copulated with appellant and that he was her father. They evidently found that such act of carnal intercourse was with her consent. Under this state of case, the court should have given a charge on accomplice testimony. Appellant also insists, that the testimony of the prosecutrix is not corroborated, and that consequently, the verdict cannot be sustained. We believe he is correct in this contention. Appellant also insists, that the proof is not sufficient to show that the prosecutrix was his daughter. There is testimony in the record tending to show that she was his illegitimate daughter. The authorities hold that the crime of incest can be committed between illegitimate relations within the prohibited degree. See 2 McClain Cr. L. § 1120, and authorities cited. in note. The proof here made, however, is by no means satisfactory. And we hold in such case, that the evidence should be clear and unequivocal as to the fact of relationship. Reversed. Clark v. S., 39 Tex. Cr. Rep. 179, 45 S. W. 576, 73 Am. St. Rep. 918.

SODOMY OR BUGGERY.

**

*

§ 191. Defined. It is carnal copulation by human being with beast, or any unnatural copulation with another person. See Estes v. Carter, § 7.

ABDUCTION.

§ 192. In General.

Statute 3 Hen. 7 (1488), c. 2. This act, after reciting that "whereas women, as well maidens as widows and wives, having substances, some in goods movable, and some in lands and tenements, and some being heirs apparent unto their ancestors, for the lucre of such substances have been oftentimes taken by misdoers, contrary to their will, and after married to such misdoers, or to others, by their assent, or defiled, to the great displeasure of God, and contrary to the king's laws, and disparagement of the said women, and utter heaviness and discomfort of their friends, and to the evil example of all others," proceeds to enact, "That what person or persons from henceforth that taketh any woman so against her will unlawfully, that is to say, maid, widow, or wife, that such taking, procuring, and abetting to the same, and also receiving willingly the same woman so taken against her will, and knowing the same, be felony, and that such misdoers, takers, and procurators to the same, and receivers, knowing the said offense in form aforesaid, be henceforth

reputed and adjudged as felons, provided always that this act extend not to any person taking any woman, only claiming her as his ward or bondwoman.'

(Eng. King's Bench, 1672.) The prisoner was indicted on the Stat. 3 H. 7, c. 2, for forcibly taking away and marrying the daughter of S. T., a city orphan in the custody of the chamberlain. The facts established in evidence were, that the prosecutrix was possessed of £5000; that she was menaced by the defendant, who was disguised in a mask, and carried away in a coach to Westminster; and the next day, by her own consent, but caused by the precedent menaces, she allowed herself to be married, but was not actually defiled, the defendant being interrupted in his designs; and, by direction of the court, the defendant was found guilty, received sentence of death, and was executed. R. v. Brown, 3 Keb. 193, 1 Vent. 243.

(Eng. King's Bench, 1682.) This was an information at common law against Lord Grey and several others, for conspiring and intending the ruin of the Lady Henrietta Berkley, then a virgin unmarried, within the age of eighteen years, one of the daughters of the Earl of Berkley (she being under the custody, etc., of her father), and soliciting her to desert her father, and to commit whoredom and adultery with Lord Grey, who was the husband of another daughter of the Earl of Berkley, sister of the Lady Henrietta, and to live and cohabit with him; and further, the defendants were charged, that, in prosecution of such conspiracy, they took away the said Lady Henrietta at night from her father's house and custody, and against his will, and caused her to live and cohabit in divers secret places with Lord Grey, to the ruin of the lady, and the evil example, etc. The defendants were found guilty, though there was no proof of any force; but on the contrary it appeared that the lady, who was herself examined as a witness, was desirous of leaving her father's house, and concurred in all the means taken for her departure and subsequent concealment. It was not shown that any artifice was made use of to induce her to leave her father's house; but the case was put upon the ground that there was a solicitation and enticement of her to unlawful lust by Lord Grey, who was the principal person concerned, the others being his servants, or persons acting by his command, and under his control. R. v. Lord Grey, 3 Howell's State Trials 519, 1 East P. C. c. 11, p. 460.

(Eng. Queen's Bench, 1701.) The defendants were indicted upon the Stat. 3 Hen. 7, c. 2. The facts disclosed in evidence were, that the female was resident with her aunt, and that on the day stated in the indictment they were waylaid, and arrested in a fictitious. suit, and conveyed from Westminster, where they lodged, to the Garter Tavern, Drury-lane, and that the defendants there separated the aunt and niece from each other, and carried the latter to Hol

born, where Swanson, the principal defendant, became her bail, and there married her while in custody. Baynton, one of the defendants, told her that if she did not marry Swanson she must go to Newgate. The court, in directing the jury, told them, that though the female might have had a regard for Swanson, yet, as she was not privy to the contrivance of coming out to him, and knew nothing of the scheme adopted by the defendants, and being married whilst she continued under that restraint and violence, though perhaps she consented to the marriage, the act itself was a crime within the statute; for here was a forcible taking away; and her subsequent consent, while under the restraint, could not be looked upon but as the effect of a continuing coercion; and that though Swanson had known nothing of the first force, yet he knowing her to be under restraint, and marrying while he knew her to be under it, made him an approver of the first act of violence, and hence a participator in the general guilt. R. v. Swanson, 7 Mod. 101, Holt 319, 5 How. St. Trials 453.

(Mich. Sup. Ct., 1885.) Purpose of Accused. CAMPBELL, J. Respondent was convicted under the statute for enticing away a girl under 16 years of age for the purpose of prostitution. Various exceptions were taken, but the only point argued was whether there was any case made that the intent was for the purpose named. The testimony showed that respondent began his contrivances as early as May, 1883, by inviting the girl to visit his photographic rooms, showing her obscene pictures, and giving her small sums of money, and finally had illicit intercourse with her at several times up to December, when her mother found her there, though he denied her presence, and she was removed. The girl testified to the various acts and circumstances, and to his promises to pay her. The statute which names the illegal purposes of such enticement of females under the age of consent, includes marriage, concubinage and prostitution. The last two were evidently intended to cover all cases of lewd intercourse. Neither of these words has any common law meaning, but both are popular phrases, either of which might be made to cover the crime here shown without any change in general usage. We see no reason whatever for attempting to narrow them. The statutory purpose is clear, and there is no difficulty in carrying it out. The conviction was right, and it must be certified to the court below that sentence should pass upon it. P. v. Cummons, 56 Mich. 544, 23 N. W. 215.