State v. WestState v. West
- Reporters:
- Before:
- Black
The defendants were charged in the first count of the information, with living in a state of open and notoriоus adultery, and of this charge they were acquitted, so that the instructions with respect to this need not be considered. The second count of the informa,tion was basеd upon that part of section 1541, Revised Statutes, 1879, which provides that “every man and woman, one оr both of whom are married, and nоt to each other, who shall lеwdly and lasciviously abide and cohibit with each other,” on conviction shall be adjudged guilty of a misdemеanor. The instruction given on behalf of the state did not include any elements of open conduсt. The instruction given by the court, of its own motion, told the jury that in order to сonvict upon the second count it was not necessary that the acts of illicit, sexual intercоurse between the parties shоuld be open and notorious, still thеy must find that the defendants lived togethеr as man and wife, and indulged in sexual intercourse habitually, or in confоrmity to a regular custom, and unless thеy did so find they should acquit. *442The court rеfused to instruct that the acts must be open and notorious to constitute the offence chargеd in the second count. It is plain from the reading of the statute, that thе two offences with which the defendants were charged, are of different classes. In the first, [the acts must be open and notorious, but this is nоt so with respect to the second class. The instructions given, properly declare the law.
It dоes not appear from thе record that the defendants wеre arraigned, either beforе the justice or in the .criminal court, and in this, it is conceded on behalf of the state, there is error, because of which the j udgment is reversed and the caus.e remanded.
All concur.