State v. Way
6 Vt. 311
Vt.
1834
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The opinion of the court was pronounced by

Williams, Ch. J.

— Two questions have been made in this case, both arising from the charge of the court. On the first question, in relation to the sufficiency of the evidence that the wife of the respondent was alive at the time of the commission of the offence, we rather incline to the opinion, that this evidence was sufficient to throw upon the respondent the burden of proving that she was not alive. This point, however, has not been much considered, as we are of opinion that the charge of the court was wrong as to the inference which the jury might draw from the facts in evidence. The statute for the punishment of crimes and misdemeanors provided for the punishment of adultery ; and further, that if a married man committed any act, or had such a connexion with an unmarried woman as would constitute the crime of adultery, provided the woman had a husband, both the man and woman should be punished as in case of adultery ; and for this offence the punishment is confinement to hard labor in the state prison. Another section of the statute provides, that if any man with *314another man’s wife, or any woman with another woman’s husband, shall be found in bed together under such circumstances "as to afford presumption of an illicit intention between them, both persons so found together shall be punished by a fine; and although by a subsequent statute, the punishment is the same in both cases, yet it is evident that two separate and distinct offences were contemplated. The testimony showed clearly an offence under the last mentioned section of the statute; and it would contravene an obvious principle of law and justice to have the same facts and the same testimony constitute and prove an offence punishable only with a fine, and also an offence punishable by imprisonment in the state prison, where one offence is not included in the other. In all prosecutions for crimes, the offence, or corpus delicti, must be proved. When it is fully proved, circumstantial or presumptive evidence may fix the crime on the person charged. This is the kind of testimony usually resorted to in the case of theft, murder, and other similar cases. The offence itself, however, must be first proved. In trials for the crime charged upon this respondent, the same evidence which proves the crime usually designates the offender. There might be a case in which the crime could be proved by witnesses, and a resort had to circumstances to point out the person committing it. In the case under consideration, however, there appears to have been nothing but presumptive evidence to prove both the offence as well as the offender. The positive testimony proved the person guilty under the section of the statute before alluded to, as being in bed with an unmarried woman, and nothing more. There was certainly great force in the argument, as to the danger of permitting the jury to draw the inference of the guilt of the respondent. He was presumed guilty of a crime from the opportunity of committing it; and if this were permitted, there would be great danger that the inference might be made in some cases without adequate proof.

The judgment of the county court must therefore be reversed and a new trial awarded.