delivered the opinion of the court:
An information was filed in the municipal court of Chicago charging the plaintiff in error, Milton M. Green, and Mary Doe, whose name was alleged to be unknown, with living together in an open state of adultery and fornication. Process was issued аgainst the plaintiff in error alone, and he was arrested and moved to quash the information. The motion was denied, whereupon he pleaded not guilty and waived trial by jury. The court heard the evidence at different times and found him guilty, and after overruling motions for a new trial and in arrest of judgment sentenced him to pay a fine of $200 and costs and in default оf payment to be committed to the house of correction. The record was removed to the Appеllate Court for the First District by writ of error, and that court affirmed the judgment. A writ of error was sued out of this court and the record brought here to review the judgment of the Appellate Court.
The information was a curious sort of document, and the question presented to the court on the motion to quash was whether it was sufficient as a statement of a criminаl offense of adultery and fornication. It first recited that the informant, being duly sworn, on his affirmation deposed to the facts therein stated. It was subscribed by the informant, and the jurat showed it was subscribed and sworn to before the clerk of the court. It charged- a joint offense of the plaintiff in error and Mary Doe and then alleged that her name was unknown. Thеre was no evidence on the hearing of the motion that the name of the woman was, in fact, known at the time the information was made and signed, although it appeared afterward on the trial that at the time of the arrest the officer making the same knew that her name was Mary Williams. The facts stated in the information were inconsistent with each other, and the recital of the officer administering the oath, both in body and jurat, was also inconsistent, but the information was sufficient as a statement that the defendant and a single woman had lived in an open state of adultery and fornication and to inform the defendant of the nature of the charge. The court did not err in denying the motion madе by the plaintiff in error to quash the information.
The case was tried by installments at different- times, but before it was finally conсluded the plaintiff in error was proved guilty beyond any reasonable doubt by competent evidence, although in the course of the trial the court committed frequent errors in the admission of testimony. The wife of the defendant was рermitted to testify against him that she was married to him on April 27, 1887, had never been divorced and had not lived with him in the past fourtеen years. It was necessary to prove the marriage, and the wife was not a competent witness. (Miner v. People,
Section 11 of division 1 of the Criminal Code provides that if any man and woman shall live together in an open stаte of adultery or fornication, or adultery and fornication, every such person shall be fined not exceeding $500 or confined in the county jail not exceeding one year. In a sense the offense is joint, but the statute defines the crime as adultery where both parties are married or fornication where neither is married, and adultery and fornication where one is married and the other unmarried. The offense charged as to the plaintiff in error was adultery and as to the woman fornication. (1 R. C. L. 634.) It was essential that the evidence should correspond with the materiаl allegations of the information and any variance therefrom would be a fatal defect, (2 Corpus Juris, 21,) and under this rulе it is contended that a failure to prove the status of Mary Williams as married or single was a fatal variance. There was no proof of her status except that she was called Miss Williams at times and Mrs. Williams at others; that she told the officer first that her name was Miss Warner and afterward that it was Mrs. Williams; and the defendant offered a license authorizing Mary Williams to operate and maintain an employment agency, which did not furnish any information as to whether she wаs married or single. It cannot be said that her status was proved, but the charge against the plaintiff in error being adultery' it wаs not necessary to make the proof in a prosecution against him. Lyman v. People,
Notwithstanding the errors of the court in admission of evidence, the guilt of the defendant was so clearly established that no different result could be expected on another trial, and the judgment ought not to be reversed.
The judgment of the Appellate Court is affirmed.
Judgment affirmed.