169 Wis. 570 | Wis. | 1919
The single question presented is whether, under our statutes, a married man who has illicit intercourse with a single female is guilty of the crime of fornication. Sec. 4580, Stats., provides:
“Any man who commits fornication with a sane single female over the age of sixteen years, each of them shall be punished by imprisonment in the county jail not more than six months or by fine not exceeding one hundred dollars, or by both such fine and imprisonment. Any man who commits fornication with a sane female of previous.chaste character under the age of twenty-one years shall be punished by imprisonment in the state prison not more than four years or by fine not exceeding two hundred dollars, or by both fine and imprisonment.”
It is the contention of the defendant in error that under the decisions of this court (Hunter v. U. S. 1 Pin. 91, and State
Adultery was a common-law crime. It consisted of intercourse by any man, married or single, with a married woman not his wife. 2 Corp. Jur. 11. Adultery was condemned at common law because it tended to introduce spurious heirs into a family and to adulterate the issue of an innocent husband and turn the inheritance away from his own blood to that of a stranger. State v. Lash, 16 N. J. Law, 380. Fornication, although cognizable in England under the ecclesiastical law, was not punishable as a common-law offense unless accompanied by such circumstances as to render it a public nuisance. 19 Cyc. 1434. By the cánon law it was the unlawful sexual intercourse of a single person with another of the opposite sex, whether married or not; while by the common law it was such intercourse between a man, whether married or single, and an unmarried woman. Id. In most of the states statutes have been enacted punishing the act of fornication, but there is a lack of harmony under such statutes as well as the decisions construing them as to what constitutes the offense of fornication.
The offense, as we are here dealing with it, must be regarded as statutory, and the nature, scope, and extent thereof must be determined by an examination of the particular statute involved. In passing, it may be well to observe that at common law illicit intercourse by any man, whether married or single, with a married woman constituted adultery. On the other hand, intercourse by any man, either married or single, with a single female constituted fornication. It was the status of the female which determined the character of
Our present statutes punishing adultery and fornication (secs. 4576 and 4580) appeared in ch. 139 of the Statutes of 1849 in substantially their present language. If in enacting these statutes the legislature had in mind the common-law definitions of adultery and fornication as hereinbefore stated, there was no overlapping of offenses in the sense that a married man having illicit intercourse with a single female could be guilty of both adultery and fornication. However, the case of Hunter v. U. S., supra, had been decided by our territorial court prior to the enactment of the statutes in question, and it must be presumed that when the legislature used the language now appearing in sec. 4580, that any man who commits fornication with a sane single female, etc., shall be guilty of the crime of fornication, the expression was not used inadvertently, but rather, it must be assumed, the legislature meant what it so plainly said. This thought is further reinforced by the language of the section providing that “each of them shall be punished.” If it were to be held that a married man who commits fornication with a single female is not guilty of the crime of fornication, it could be plausibly argued that the female could not be convicted, as the statute makes them equally guilty, and unless the man is guilty neither is the woman. State v. Fellows, 50 Wis. 65, 6 N. W. 239, was decided in 1880. By ch. 73, Laws 1882, very shortly after the decision in the Fellows Case, the legislature added to sec. 4580 the provision that “In case any man shall commit fornication with a female of previous chaste character,” etc., he shall be punished, etc. It will thus be seen that the attention of the legislature was called to this section after the decision in the Fellows Case, and it not only left un
While it may be that legislation in general upon this subject does not make a married man guilty of both adultery and fornication, as is the result here, yet a so-called overlapping of offenses is by no means anomalous. It frequently happens that a single act may be punishable as for one of two or more offenses. If the result is at all inimical to public policy it is a situation requiring the attention of the legislature. So far as the instant case is concerned, the result is not to be regretted. The small measure of punishment to which the defendant in error is amenable but scantily expiates his flagrant and notorious violations of marital obligations, which are responsible for the destruction of one life and the ruination of another.
By the Court. — Judgment reversed, and cause remanded with directions to overrule the plea in bar and for further proceedings according to law.
