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tions when by statutory provision she is allowed to give evidence against her husband in prosecutions for crimes committed by him against her. Incest has been held to be a crime against her. State v. Chambers (Iowa) Jan. 17, 1893, 47 Alb. L. J. 163.

CHAPTER LX.

ADULTERY.

§ 532. The Term Defined.

533. Elements of the Crime.

534. Presumptive Evidence may be Sufficient.
535. Positive Proof never Required.

536. Views of Lord Stowell on the Subject.

537. Prior Offenses between the Parties may be Shown.
538. Admissions of Marriage Competent.

539. Adulterous Disposition may be Shown.
540. Birth of Child as Evidence of.

541. Reputation for Chastity may be Shown.

§ 532. The Term Defined.-This is the unlawful and voluntary sexual intercourse of two persons of opposite sexes, one of whom is married. It is not an offense at common law, nor by statute in England, and is a statutory offense in only a few of the United States.

Either party may be tried alone, and it is not essential to show that both had a guilty intent.

On a charge of "open and notorious adultery" the public and habitual violation of the law must be shown. "Living in adultery" means more than a single act of adulterous intercourse.

Rape may be also adultery. Browne, Crim. L. 31, citing Montana v. Whitcomb, 1 Mont. 359, 25 Am. Rep. 740, 26 Am. Rep. 33, note; Com. v. Bakeman, 131 Mass. 577, 41 Am. Rep. 248; State v. Crowner, 56 Mo. 147; State v. Cutshall, 109 N. C. 764; Smith v. State, 39 Ala. 554.

§ 533. Elements of the Crime. The elements of the crime are, 1st, that there shall be an unlawful carnal connection; 2d, that the guilty party shall at the time be married; 3d, that he or she shall willingly commit the offense; for a woman who has been ravished against her will is not guilty of adultery. 3 Domat, Supp. du Droit Public, title 10, note 13; 1 Bouvier, Law Dict. 76.

§ 534. Presumptive Evidence may be Sufficient.—Although presumptive evidence alone is sufficient to establish the fact of adulterous intercourse, the circumstances must lead to it, not only

by fair inference but as a necessary conclusion; appearances equally capable of two interpretations, one an innocent one, will not justify the presumption of guilt. Evidence simply showing full and frequent opportunity for illicit, carnal intercourse, is not alone sufficient to found an inference that the criminal act was committed. General cohabitation alone, i. e., the simple living or being together all or most of the time in the same household, apart from suspicious circumstances characterizing it, is not sufficient to warrant an inference of adultery; there must be some accompanying circumstances fitted fairly to induce a belief that it was not for a proper purpose. Pollock v. Pollock, 71 N. Y. 137.

§ 535. Positive Proof never Required.-In almost every case of adultery, the fact is inferred from circumstances that lead to it by fair inferences as a necessary conclusion. Positive proof of the fact is not required, and from the nature of the offense, not easily made. Circumstances that lead a rational and just man to a conclusion of guilt beyond a reasonable doubt, are sufficient to authorize a conviction. "A married man going into a known brothel raises a suspicion of adultery, to be rebutted only by the best evidence. His going there, and remaining alone for some time in a room with a common prostitute, is sufficient proof of the crime. The circumstance of a woman going to such a place with a man furnishes proof of adultery." 2 Greenl. Ev. p. 34, § 44. The same author, in page 32, section 41, states that the rule has been elsewhere more briefly stated, to require that these be such proximate circumstances proven, as by former decisions, or in their own nature and tendency, satisfy the legal judgment of the court that the criminal act has been committed; and, therefore, it has been held that general cohabitation excluded the necessity of proof of particular facts. Ordinarily, it is not necessary to prove the act to have been committed at any particular or certain time or place. It will be sufficient if the circumstances are such as to lead the court, proceeding with every necessary caution, to this conclusion, which it has often drawn between persons living in the same house, though not seen in the same bed, or in any equivocal situation. "The adulterous disposition of the parties being once established, the crime may be inferred from their afterward being discovered together in the bedchamber, under circumstances authorizing such inference.” The proof made in this case was not positive proof of the fact,

but only of such facts as from which the guilt may be inferred. Being in bed together but once raises a presumption of guilt, but the guilt might possibly be disproved by a proper explanation of the circumstances; but being in bed together at various and different times cannot be satisfactorily explained consistently with innocence, and tends to satisfy the mind of the guilt of the accused beyond a reasonable doubt. From the nature of the charge, and the evidence reasonably to be expected to sustain it, latitude in the investigation must be allowed. Baker v. United States, 1 Pinney, 641.

Adultery may be established by the evidence of parties who saw the act committed, or by proof of facts from which intercourse may be inferred. On account of the secret character of the offense, the former, direct proof, cannot be expected; proof that the parties were seen in the same bed, or occupied at night the same room in which there was but one bed, or lived together as if husband and wife (but not mere fact of a marriage ceremony between them) raises an almost irrebuttable presumption of their intercourse; so a wife's adultery may be proved by the fact of the birth of a child without access of her husband, or a husband's by his having a venereal disease too long after marriage to have been caused before. The circumstances from which adultery may be inferred must be such as to satisfy a reasonable and just man beyond reasonable doubt. Adultery may be proved by a preponderance of evidence; all doubt need not be excluded, though of course it is not established by facts which are equally consistent with innocence. The proof must be clear, positive, satisfactory. Two things should be proved: (1) a criminal attachment between the parties, and a mutual intention to indulge in intercourse; and (2) opportunities to so indulge. If the intention of both is proved, and the opportunities are ample, adultery will be presumed. Opportunities alone are not enough, nor are opportunities with mere suspicious circumstances; nor is mere scandal, or suspicion; but a combination of suspicious facts may lead to an inference of guilt when separately they would not.

Stewart, Marriage & Div. § 246, citing the following American cases: Evans v. Evans, 41 Cal. 103, 108; Larrison v. Larrison, 20 N. J. Eq. 100, 101; Burchet v. Burchet, Wright (Ohio) 161; Pollock v. Pollock, 71 N. Y. 137, 141; Mosser v. Messer, 29 Ala. 313, 317; Inskeep v. Inskeep, 5 Iowa, 204, 208; Freeman v.

Freeman, 31 Wis. 235, 240; Van Epps v. Van Epps, 6 Barb. 320, 323; State v. Way, 6 Vt. 311; Scroggins v. Scroggins, Wright (Ohio) 212; Langstaff v. Langstaff, Wright (Ohio) 148, 149; Masten v. Masten, 15 N. H. 159, 161; Reemie v. Reemie, 4 Mass. 586; Wilson v. Wilson, Wright (Ohio) 128, 129; Com. v. Shepherd, 6 Binn. 283, 286, 6 Am. Dec. 449; Johnson v. Johnson, 14 Wend. 637, 642; North v. North, 5 Mass. 320; Mount v. Mount, 15 N. J. Eq. 162, 163, 82 Am. Dec. 276; Cook v. Cook, 32 N. J. Eq. 475, 477, 478; Thayer v. Thayer, 101 Mass. 111, 113, 114, 100 Am. Dec. 110; Berckmans v. Berckmans, 16 N. J. Eq. 122, 140; Mulock v. Mulock, 1 Edw. Ch. 14; Ferguson v. Ferguson, 3 Sandf. 307; Carter v. Carter, 62 Ill. 439, 449; Smith v. Smith, 5 Or. 186-188; Chestnut v. Chestnut, 88 Ill. 548, 551; Whitenack v. Whitenack, 36 N. J. Eq. 474, 477; Freeman v. Freeman, 31 Wis. 235, 241; Jeter v. Jeter, 36 Ala. 391; Clear v. Reasor, 29 Iowa, 327; Mehle v. Lapeyrollerie, 16 La. Ann. 4; Dailey v. Dailey, Wright (Ohio) 514, 517; State v. Waller, SO N. C. 401, 402; Blake v. Blake, 70 Ill. 618, 625; Hunn v. Hunn, 1 Thomp. & C. 499, 501; Black v. Black, 30 N. J. Eq. 228, 230; Platt v. Platt, 5 Daly, 295, 296; Derby v. Derby, 21 N. J. Eq. 36, 60; McClung v. McClung, 40 Mich. 493; Cooper v. Cooper, 10 La. 249, 252; Mayer v. Mayer, 21 N. J. Eq. 246, 248; Johnston v. Johnston, Wright (Ohio) 454; Smelser v. State, 31 Tex. 95, 96; Soper v. Soper, 29 Mich. 305, 306; Overstreet v. State, 3 How. (Miss.) 328, 329; Marble v. Marble, 36 Mich. 386, 388; State v. Crowley, 13 Ala. 172, 174.

§ 536. Views of Lord Stowell on the Subject. - Lord Stowell in a case still quoted with entire approbation says:

"It is a fundamental rule that it is not necessary to prove the direct fact of adultery; because if it were otherwise, there is not one case in a hundred in which that proof would be attainable; it is very rarely, indeed, that the parties are surprised in the direct act of adultery. In every case, almost, the fact is inferred from circumstances, that lead to it, by fair inference as a necessary conclusion; and unless this were the case, and unless this were so held, no protection whatever could be given to marital rights. What are the circumstances which lead to such a conclusion, cannot be laid down universally, though many of them, of a more obvious nature, and of more frequent occurrence, are to be found in the ancient books; at the same time, it is impossible to indicate

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