State v. Way

Gantt, J.

Under sections 483, 515 and 516 of the criminal code, this case is brought here upon error by the plaintiff, to obtain the decision of this court upon questions of law raised by exceptions taken to the decision of the court below.

In the first count in the indictment, the defendant, a married man, is charged with the crime of adultery with a certain married woman, and the offense is stated as having taken place on the 27th day of February, 1875. From the record it appears, that testimony was given on the part of the plaintiff, tending to show that the defendant committed the adultery at the time charged in the indictment; and then for the purpose of corroborating this proof, the plaintiff, offered other testimony of improper familiarities between the parties after the time the act is charged in the indictment. The defendant objected to this proof on the ground that it is immaterial and irrelevant. The objections were sustained by the court, and the plaintiff excepted. It is' complained that the court erred in excluding the proof. This question is presented for the consideration of the court.

Now, it will not be controverted, that, as a general rule of law, evidence of facts tending to prove another distinct offense is inadmissible for the purpose of raising an inference of the prisoner’s guilt of the particular act alleged; but we think the crime of adultery “involves different principles, in this respect, and should be governed by different rules, from those which apply to offenses generally.” There is no doubt of the conflict of authorities upon the question, but upon an examination of it, we are of opinion that the better rule in prosecutions for adultery is, to admit testimony of improper familiarities between the parties, occurring both before and after the time the act is charged, as corroborating *288 evidence. And this principle, it seems to us, is so clearly illustrated in the case of Thayer v. Thayer, 101 Mass., 113 , that we adopt the language of the opinion in that case as our own, and as the correct interpretation of the •law in such case. In that case it is said: “The evidence by which the act of adultery is proved is seldom direct. The natural secrecy of the act makes it ordinarily impossible to prove it, except by circumstantial evidence. The circumstances must be such, indeed, ‘ as to lead the guarded discretion of a reasonable and just man to the conclusion of guilt.’ But when adulterous disposition is shown to exist between the parties at the time of the alleged act, then mere opportunity, with comparatively slight circumstances showing guilt, will be sufficient to justify the inference that criminal intercourse has actually taken place. The intent and disposition of the parties to each other must give character to their relations, and can only be ascertained, as all moral qualities are, from the acts and declarations of the parties. It is true, that the fact to be proved is the existence of a criminal disposition at the time the act is charged; but the indications by which it is proved may extend', and ordvnarily do extend, over a period of time both anterior and subsequent to it. The rules which govern human conduct, and which are known to common obseivation and experience, are to be applied in these cases, as in all other investigations of fact. An adulterous disposition existing in two persons towards each other is commonly of gradual development; it must have some duration and does not suddenly subside. When once shown to exist, a strong inference arises that it has had and will have continuance, the duration and extent of which may be usually measured by the power which it exercises over the conduct of the parties. It is this character of permanence which justifies the inference of its existence, at any particular period of time, from facts illustrating *289 the preceding and subsequent relations of the parties. The rule is, that a condition once proved, is presumed to have been produced by causes operating in the usual way, and to have continued until the contrary is shown. The limit, practically, to the evidence under consideration is, that it must be significant in character, and sufficiently near in point of time, to have a tendency ‘to lead the guarded discretion of a reasonable and just man,’ to a belief in the existence of this important element in the fact to be proved. If too remote or insignificant, it will be rejected, in the discretion of the judge who tries the case. The fact that the conduct relied on has occurred since the filing of the libel does not exclude it; and proof of the continuance of the same questionable relations during the intervening time, will add to its weight.” Bish. Stat. Cr. Law, Sec., 682, et seq. The People v. Jenness, 5 Mich., 321 . State v. Wallace, 9 N. H., 517. Lawson et al. v. State, 20 Ala., 65 .

The second count in the indictment charges, that the defendant, a married man, did unlawfully keep a certain woman, other than his wife, and unlawfully and wantonly did cohabit with her in a state of adultery, from the 10th day of August, 1874, until the 15th day of July, 1875. It is very clear that this count in the indictment is founded on section 208 of the criminal code, as amended by section 23 of the act of February 25, 1875, and the offense is charged substantially in the words of the statute as amended. A motion filed by the defendant to quash this count was sustained by the court, and the plaintiff excepted. It is complained that the court erred in sustaining the motion.

In the argument for the defendant, it is insisted, that the motion was properly sustained, for the reasons: first, that “no offense is charged in the count;” second, “ because it alleges the offense to have been committed on a day,” long prior to the passage of the law making *290 the act criminal; and, third, because the indictment does not contain direct allegations of time and place of the material facts necessary to constitute the offense.

In respect to the first point made in the argument, it must be observed, that the gist of the offense is, that the defendant did wantonly cohabit with the woman in a state of adultery. To cohabit, according to the sense in which the word is used in the statute, means dwelling together as husband and wife, or in sexual intercourse, and comprises a continued period of time. Hence, the offense is not the single act of adultery; it is cohabiting in a state of adultery; and it may be a week, a month, a year, or longer, but, still, it is one offense only. The defendant is charged with the crime from August 10, 1874:, until July 15, 1875. According to the import of the words used in the statute, this is a continued offense, and if it should be proved that he wantonly cohabited with the woman in a state of adultery, during any portion of this time, such pi’oof would be sufficient to establish the crime and fix the guilt of the party. "We are of opinion, that the continuing offense in this case was properly charged, and the statement of time properly alleged in the indictment.

The second point made in the argument is not tenable, because no evidence could be received of any acts prior to the passage of the law, as the statutory offense charged did not then exist, and, therefore, as time is not of the essence of the offense charged, the prior time alleged in the indictment may be treated as surplusage, and the indictment, in its legal effect, be held good as charging the offense from the passage of the law until July 15, 1875. Nichols' and Janes' case, 7 Gratt., 589 . Bish. Stat. Cr. L., Sec. 703. Commonwealth v. Wood, 4 Gray, 12. 1 Chitt. Cr. L., 230.

The third point made in the argument seems to be sufficiently answered in what is said above. If the con- *291 tinning offense is properly charged in the' indictment, then the allegations of time and place, in respect to the material facts, which constitute the offense, are sufficiently stated.

In conclusion, we are of opinion that the court below erred in excluding the evidence offered by plaintiff, and in sustaining the motion to quash the second count in the indictment; and that the decision of this court be rendered accordingly.