55 Ala. 154 | Ala. | 1876
Adultery and fornication, while of the same grade, are essentially different offenses. To commit the former, one of the parties, at least, must be, at the time, a married person. Whether, if one of the offenders be married, and the other single, the latter commits the offense of adultery or fornication, the authorities are not in entire harmony. See Smitherman v. State, 27 Ala. 23; 2 Bish. Cr. Law, §§ 11, 12, and notes. The better opinion, however, seems to be, that, in such case, the married offender is guilty of adultery, and the unmarried one of fornication. The offense of fornication proper is committed when neither of the offending parties is married.
In prosecutions for adultery, marriage is a necessary ingredient of the offense, that must be proved. Declarations and conduct, holding out to the world that such relation does exist between parties who are living together, is competent evidence. — See Langley v. State, 30 Ala. 586. Reputation, or general repute, on the other hand, is not legal proof of marriage. — Morgan v. State, 11 Ala. 289.
The judgment of the Circuit • Court is reversed, and the cause remanded. Let the defendants remain in custody, until discharged by due course of law.