27 Ala. 23 | Ala. | 1855
The statute has disjoined the offences of adultery and fornication, by declaring that, “ if any man and woman live together in adultery, or fornication,” &c. (Code, § 3281); and while it is true they both involve an illicit cohabitation between the sexes, yet we are of opinion, that upon an indictment for adultery, a party cannot be convicted of fornication. To constitute the crime of adultery, one of the parties, at least, must be married, as it imports a violation of the marriage bed. We must, therefore, consider this indictment as though the fact of marriage had been averred. In such ease, the marriage must be established by strict proof, as in case of bigamy, and on failure to make such proof, the-party would, of course, be entitled to an acquittal. Suppose sufeh an acquittal; would this be a bar to a subsequent indictment for fornication? Wo are clearly of opinion that it would not, and so it was decided in The State v. Cowell & Williams, 4 Ired. L. 231.
We concede that they may be united in the same indictment by different counts, being offences of kindred character, and punishable alike; but, in the absence of a count for fornication, the party cannot be convicted of that offence upon an indictment for adultery. In such case, there is a fatal variance between the offence charged and that proved. It
It is my individual opinion, that the term adultery, as used in our Code,' should be construed with reference to the subjects-matter with which it stands connected. When used with reference to divorce; it is to be taken in the canonical sense of that term, and embraces the infidelity of the husband to his wife, in'his illicit sexual commerce with another woman, whether married or single, and so of the wife; but when considered with reference to the criminal law, it imports such sexual intercourse as violates another man’s bed — as may entail'.a spurious issue upon the defrauded husband — “ carnal knowledge of another man’s wife,” as defined by the civil law. — ■ Woods’ Inst. 272. Such appears to be the sense in which it was used in .the Mosaic law, which punished it with death,— “ the man because he hath humbled Ms neighbor’s wife” (Deut. xxii, 23, 24, 29); and the sense in which lexicographers regard it. — See the word in Johnson’s, Walker’s and Webster’s Dictionaries; also, Lewis’ Or. Law, pp. 41-43; 3 Arch. Cr. Pl. (edit. 1853), p. 615.
In The State v. Pearce, 2 Black. R. 318, it was held, that if a man have criminal intercourse with a married woman, it was adultery, and not fornication. So, in The State v. Lash, 1
In the case before us, it was distinctly proved that neither of the parties was married. The indictment contains a single count for adultery. The judge charged, that if the parties lived together in illicit cohabitation, they might be convicted of fornication ; and the jury thereupon found the defendant guilty in manner and form as charged in the indictment. An intimation is given in The State v. Hinton and Watson, 6 Ala. 864, that a conviction for fornication could be had upon such indictment; but in that case there was a count upon each offence, and the jury found a general verdict. We are of opinion that the charge of the court was erroneous, being inconsistent with the law as we have above laid it down.
The sentence of conviction must, therefore, be reversed, and the cause remanded.