them universally; because they may be infinitely diversified by the situation and character of the parties, by the state of general manners, and by many other incidental circumstances, apparently slight and delicate in themselves, but which may have most important bearings in decisions upon the particular case. The only general rule that can be laid down upon the subject, is that the circumstances must be such as would lead the guarded discretion of a reasonable and just man to the conclusion; for it is not to lead a rash and intemperate judgment, moving upon appearances, that are equally capable of two interpretations,-neither is it to be a matter of artificial reasoning, judging upon such things differently from what would strike the careful and cautious consideration of a discreet man. The facts are not of a technical nature; they are facts determinable upon common grounds of reason; and courts of justice would wander very much from their proper office of giving protection to the rights of mankind, if they let themselves loose to subtilties, and remote and artificial reasonings upon such subjects. Upon such subjects the rational and the legal interpretation must be the same." Loveden v. Loveden, 2 Hagg. Consist. Rep. 2, 3.

537. Prior Offenses between the Parties may be Shown.--In prosecutions for adultery, or for illicit intercourse of any class, evidence is adınissible of sexual acts between the same parties prior to, or, when indicating continuous or illicit relations, even subsequent to, the act specifically under trial. Prior sexual attempts on the same woman are admissible, under the same limitations, on a trial of rape. Whart. Crim. Rep. § 35, citing State v. Wallace, 9 N. H. 518; State v. Potter, 52 Vt. 33; Com. v. Horton, 2 Gray, 354; Com. v. Lahey, 14 Gray, 91; Com. v. Call, 21 Pick. 509, 32 Am. Dec. 284; Com. v. Nichols, 114 Mass. 285, 19 Am. Rep. 346; Com. v. Bowers, 121 Mass. 45; People v. Jenness, 5 Mich. 305; Searls v. People, 13 Ill. 597; Lovell v. State, 12 Ind. 18; State v. Kemp, 87 N. C. 538; State v. Pippin, 88 N. C. 646; Lawson v. State, 20 Ala. 66, 56 Am. Dec. 182; Richardson v. State, 34 Tex. 142; McClung v. McClung, 40 Mich. 493; Boddy v. Boddy, 30 L. J. Mat. 23; State v. Witham, 72 Me. 531; State v. Bridgman, 49 Vt. 202, 24 Am. Rep. 124; Thayer v. Thayer, 101 Mass. 111, 100 Am. Dec. 110; State v. Way, 5 Neb. 283; Pollock v. Pollock, 71 N. Y. 137; State v. Waller, 80 N. C. 401.

538. Admissions of Marriage Competent.-Where a man is on trial for adultery, the allegation of the indictment that he is a married man may be proved by evidence of his own admissions to that effect. Upon this question there is some conflict of authority. In New York (People v. Humphrey, 7 Johns. 314) and in Connecticut (State v. Roswell, 6 Conn. 446) upon criminal charges involving the same point, it has been held that the marriage cannot be so proved. In Massachusetts, in an indictment against two persons for lascivious cohabitation, one of them being a married woman, it was held that her admission, twelve years before, followed by cohabitation and the birth of children, was insufficient evidence of the marriage (Com. v. Littlejohn, 15 Mass. 163) and according to a citation in Cook v. State, 11 Ga. 53, 56 Am. Dec. 410, of a case to which we have not had access, a similar decision has been made in one other state.

Of these cases, those which we have examined, in so far as they rest upon authority, rest mainly upon the authority of Morris v. Miller, 4 Burr. 2057. This was an action for criminal conversation, in which the evidence that the woman alleged to have been debauched was the plaintiff's wife, was the declaration of the defendant to his landlord that she was the plaintiff's wife, and that he had committed adultery with her. The opinion of the court was delivered by Lord Mansfield, who said: "We are all clearly of the opinion that in this kind of action, an action for criminal conversation with the plaintiff's wife, there must be evidence of a marriage in fact; acknowledgment, cohabitation and reputation are not sufficient to maintain this action." And he also said: "In prosecutions for bigamy, a marriage in fact must be proved."

§ 539. Adulterous Disposition may be Shown.—In proof of an unlawful sexual intercourse, the adulterous disposition of the parties at the time may be shown. To this end, the antecedent and subsequent conduct and declarations of the parties, if it has a tendency to prove the fact, is admissible. It is a matter of common observation, that a criminal intimacy, is usually of gradual development and when established is likely to continue between the parties. The act itself is the strongest evidence of the existence of the disposition; and it has been recently held that, for the purpose of proving it, an act of adultery at another time may be shown. Thayer v. Thayer, 101 Mass. 111, 100 Am. Dec. 110. It has long been held that prior acts of familiarity were

admissible to render it not improbable that the act might have occurred. Com. v. Merriam, 14 Pick. 518, 25 Am. Dec. 420.

The only limit to this description of evidence is, that it must be sufficiently near in point of time, and sufficiently significant in character, to afford an inference of the moral condition to be proved. And this must be fixed to a greater extent by the discretion of the judge who tries the case. Beers v. Jackman, 103

Mass. 192.

"The letters of the respondent to the complainant which were admitted in evidence to show a suspicious intimacy between them which was necessarily the result of their previous acquaintance and relations; they contain expressions which could hardly be used between persons whose relations were innocent, and which fairly lead to the inference that the parties had been guilty of criminal intercourse. They were therefore admissible, within the discretion of the presiding judge." Sullivan v. Hurley, 147 Mass. 387.

There has been some difference of opinion as to the extent to which evidence of improper familiarities, other than that charged in the indictment is admissible. On the one hand, it has been said that in all cases, whether civil or criminal, involving a charge of illicit intercourse within a limited period may be adduced in connection with, and in explanation of, acts of a similar character occurring within that period, although such former acts would be inadmissible as independent testimony, and if treated as an offense, would be barred by the statute of limitations. In point of fact, as evidence of adultery is almost always circumstantial, and as even when it is direct, corroborative evidence is admissible to support it, it is difficult to see how evidence of prior improper familiarities can be rejected. On the other hand, evidence of improper conduct by the defendant, with other parties than those charged in the indictment, is clearly inadmissible, and evidence of guilt with the same party subsequent to the finding of the indictment is inadmissible unless to corroborate facts proved to have taken place before. And it is plain that evidence of a propensity to commit the particular offense is inadmissible. Suspicions of the wife, and rumors in the neighborhood, are both inadmissible. Whart. Am. Crim. L. § 2653.

§ 540. Birth of Child as Evidence of.-Adultery of the wife may be proved by the birth of a child, and non-access of the hus

band, he being out of the realm; and if adultery is alleged to have been continued, for many years, and with divers particular individuals, it is sufficient to prove a few of the facts, with identity of her person. Adultery of the husband, on the other hand, may be proved by habits of adulterous intercourse, and by the birth, maintenance, and acknowledgment of a child. 2 Greenl. Ev. § 44, citing Richardson v. Richardson, 1 Hagg. Eccl. Rep. 6; D'Aguilar v. D'Aguilar, 1 Hagg. Eccl. Rep. 777, note; Astley v. Astley, 1 Hagg. Eccl. Rep. 719, 720; Loveden v. Loveden, 2 Hagg. Consist. Rep. 2, 4; Kenrick v. Kenrick, 4 Hagg. Eccl. Rep. 114, 124, 132, Eliot v. Eliot, cited in 1 Hagg. Consist. Rep. 302; Durant v. Durant, 1 Hagg. Eccl. Rep. 767; Bishop, Marriage & Div. § 427;

et seq.

§ 541. Reputation for Chastity may be Shown.-In adultery, the chastity of a woman previous to the time of the commission of the alleged offense is not necessarily in issue, and evidence of previous acts of sexual intercourse with a man named (not the accused) is not admissible. People v. Knapp, 42 Mich. 267, 36 Am. Rep. 438. But evidence of other acts of adultery between the parties, commencing about the time of the commission of the alleged offense, is admissible. State v. Bridgman, 49 Vt. 202, 24 Am. Rep. 124; State v. Witham, 72 Me. 531. And so is evidence tending to show subsequent illicit intercourse between them. Baker v. United States, 1 Pinney, 641; Com. v. Nichols, 114 Mass. 285, 19 Am. Rep. 346. And evidence of the reputation for chastity, of the woman with whom the offense is alleged to have been committed is admissible. Com. v. Gray, 129 Mass. 474, 37 Am. Rep. 378; People v. Brewer, 27 Mich. 134, note.

The presumptions of law should be in accordance with the general fact; and whenever it shall be true of any country, that the women, as a general fact, are not chaste, the foundations of civil society will be wholly broken up. Fortunately in our own country an unchaste female is comparatively a rare exception to the general rule; and whoever relies upon the existence of the excep tion in a particular case should be required to prove it. Crozier v. People, 1 Park. Crim. Rep. 457; People v. Kenyon, 5 Park. Crim. Rep. 286; Kenyon v. People, 26 N. Y. 204, 84 Am. Dec. 177; Andre v. State, 5 Iowa, 398, 68 Am. Dec. 708; People v. Millspaugh, 11 Mich. 278. The case of West v. State, 1 Wis. 217, which seems to hold otherwise, was decided upon the phrase

ology of the Wisconsin statute, which was thought to make the "previous chaste character" of the person seduced an ingredient in the offense, to be made out by proofs. The Michigan statute is very simple, and merely provides that, "if any man shall seduce and debauch an unmarried woman he shall be punished," etc. Comp. L. 1871, § 7697; People v. Brewer, 27 Mich. 134.

A person's character for chastity, when it is relevant, is not shielded from inquiry. It is a disagreeable subject of investigation, but the law makes no discrimination between subjects that are agreeable and those that are disagreeable. Wood v. Gale, 10 N. H. 247, 34 Am. Dec. 150. Sexual crimes are not excepted, as a peculiar class, from the operation of the general rule that admits relevant evidence. On an indictment for adultery, evidence of previous improper familiarities is competent. State v. Wallace, 9 N. H. 515; State v. Marvin, 35 N. H. 22; Com. v. Merriam, 14 Pick. 518, 25 Am. Dec. 420; Com. v. Lahey, 14 Gray, 91. In Com. v. Horton, 2 Gray, 354, and Com. v. Thrasher, 11 Gray, 450, it was held that although improper familiarities were competent, proof of actual adultery (other than that charged) committed by the same parties with each other was incompetent, but in Thayer v. Thayer, 101 Mass. 111, 113, 114, 100 Am. Dec. 110, the absurdity of that distinction was acknowledged, and the two cases which established it were overruled. The court says: "When adulterous disposition is shown to exist between the parties at the time of the alleged act, then mere opportunity, with comparatively slight circumstances showing guilt, will be sufficient to justify the inference that criminal intercourse has actually taken place. 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. By the application of the rule laid down in these cases (Com. v. Horton, 2 Gray, 354, and Com. v. Thrasher, 11 Gray, 450) evidence tending to establish an independent crime is to be rejected, although all