§ 761. Definitions.-At common law adultery was merely a civil wrong and consisted in sexual intercourse by a man with another man's wife.1 At Roman law this was a crime, both man and woman being principals.2 The crime was

1 Commonwealth v. Call, 21 Pick. (Mass.) 509, 32 Am. Dec. 284; State v. Lash, 16 N. J. L. 380, 32 Am. Dec. 397; Anderson v. Commonwealth, 5 Rand. (Va.) 627, 16 Am.

Dec. 776; 3 Bl. Comm. 139; 4 Bl.
Comm. 65.

2 State v. Weatherby, 43 Maine 258, 69 Am. Dec. 59; Whart. Crim. L. (11th ed.) § 2063.

against the rights of the husband, and the tendency to adulterate his issue. Neither at common law, nor under the Roman civil law, was it an offense for a married man to have intercourse with a single woman, since this neither violated a husband's rights to his wife's person, nor could force spurious issue on another.

Under the Ecclesiastical law adultery is sexual intercourse by a married person with anyone other than the lawful husband or wife. The crime is statutory in this country, its elements varying with the different wording of the statutes. Some statutes follow the Ecclesiastical law, and both man and woman are guilty, others follow the ecclesiastical definition, but make only the married party guilty, others adhere strictly to the Roman rule. If the statute merely defines the crime as adultery, then, Wharton says, it means sexual connection between a man and a woman, one of whom is lawfully married to a third person, and both are principals."

§ 762. Elements of offense-What must be proved.There must be evidence of a valid marriage of one party, the requirements and proof of the existence or termination of which are the same as in bigamy.8

3 Bashford v. Wells, 78 Kans. 295, 98 Pac. 663, 18 L. R. A. (N. S.) 530, 16 Ann. Cas. 310; State v. Lash, 16 N. J. L. 380, 32 Am. Dec. 397; Whart. Crim. L. (11th ed.) § 2063.

4 State v. Hinton, 6 Ala. 864; State v. Wilson, 22 Iowa 364.

5 Buchanan v. State, 55 Ala. 154; Cook v. State, 11 Ga. 53, 56 Am. Dec. 410; Miner v. People, 58 Ill. 59; State v. Hutchinson, 36 Maine 261; Commonwealth v. Call, 21 Pick. (Mass.) 509, 32 Am. Dec. 284; Helfrich v. Commonwealth, 33 Pa. St. 68, 75 Am. Dec. 579; Swan

coat v. State, 4 Tex. App. 105; State v. Fellows, 50 Wis. 65, 6 N. W. 239.

6 State v. Pearce, 2 Blackf. (Ind.) 318; State v. Armstrong, 4 Minn. 335; State v. Taylor, 58 N. H. 331; State v. Lash, 16 N. J. L. 380, 32 Am. Dec. 397. See also Commonwealth v. Elwell, 2 Met. (Mass.) 190, 35 Am. Dec. 398.

7 Whart. Crim. L. (11th ed.) § 2066. See also Bashford v. Wells, 78 Kans. 295, 98 Pac. 663, 18 L. R. C. (N. S.) 580, 16 Ann. Cas. 310n. 8 See Ch. LXI.

It is unnecessary to prove emission in adultery, the rule being the same as in rape."

Intercourse should be proved, but this may be done by circumstantial evidence; as occupying the same bed,10 living together in the same room for some time,11 or evidence of cohabitation and birth of children. 12 Evidence of previous improper familiarities is generally held admissible,13 and sometimes evidence of subsequent familiarities or intercourse.1 Admissions and confessions may be used in evidence, both as to adultery, or as to prior marriage, for what they are worth.15

14

16

So

Intent is an element, but may be inferred from the act.1 Insanity or a mistake of fact, on the part of one party, may 1ender that one innocent, though the other is guilty.17 where a woman supposes herself legally married, she is not guilty of adultery because the marriage is void, on account of a prior existing marriage of the man.18

9 Commonwealth v. Hussey, 157 Mass. 415, 32 N. E. 362; Noble v. State, 22 Ohio St. 541; State v. Wheeler, 93 Wash. 538, 161 Pac. 373; Anderson v. State (Tex. Cr.), 193 S. W. 301; State v. McGlammery, 173 N. Car. 148, 91 S. E. 371.

10 Blackman v. State, 36 Ala. 295; Commonwealth v. Mosier, 135 Pa. St. 221, 19 Atl. 934.

11 Richardson v. State, 34 Tex. 142.

12 State v. Chancy, 110 N. Car. 507, 14 S. E. 780.

13 Lawson v. State, 20 Ala. 65, 56 Am. Dec. 182; State v. Bridgman, 49 Vt. 202, 24 Am. Rep. 124.

14 Lawson v. State, 20 Ala. 65, 56 Am. Dec. 182; State v. Bridgman, 49 Vt. 202, 24 Am. Rep. 124. See also Commonwealth v. Nichols, 114 Mass. 285, 19 Am. Rep. 346. In a prosecution for adultery by habitual carnal intercourse, evidence of

nine specific acts of sexual intercourse, only three of which were corroborated, was not sufficient to sustain a conviction. Cordill v. State (Tex. Cr.), 201 S. W. 181.

15 State v. Moore, 36 Utah 521, 105 Pac. 293, Ann. Cas. 1912 A, 284n; Whart. Crim. L. (11th ed.) § 2080.

16 Hood v. State, 56 Ind. 263, 26 Am. Rep. 21, 2 Am. Cr. 165; Commonwealth V. Elwell, 2 Met. (Mass.) 190, 35 Am. Dec. 398; State v. Westmoreland, 76 S. Car. 145, 56 S. E. 673, 8 L. R. A. (N. S.) 842; State v. Audette, 81 Vt. 400, 70 Atl. 833, 18 L. R. A. (N. S.) 527, 130 Am. St. 1061.

17 State v. Cutshall, 109 N. Car. 764, 14 S. E. 107, 26 Am. St. 599; Alonzo v. State, 15 Tex. App. 378, 49 Am. Rep. 207.

18 Banks v. State, 96 Ala. 41, 11 So. 469.

§ 763. Defenses.-Divorce is a defense, as in bigamy.1 19 A divorce which does not give the right to marry again is a defense in adultery.20 An honest though erroneous belief of the defendant that he had been divorced is no defense.21 Also it is held that ignorance by the man that the woman is married is no defense if the intercourse was illicit.22 Nor is a morganatic marriage a defense.23 Acquittal of one defendant is not a bar to the prosecution of the other.24 But where one person marries another believing on reasonable ground that such other is unmarried or that a prior spouse of the other is dead, a prosecution for adultery is barred.25 Acquittal of one party is not a bar to a prosecution of the other.28

§ 764. Witnesses.-The one with whom the defendant is alleged to have committed the offense is a competent witness for either prosecution or defense,27 but as an accomplice such testimony must be corroborated.28 At common law

19 State v. Weatherby, 43 Maine 258, 69 Am. Dec. 59.

20 Haddock v. Haddock, 201 U. S. 562, 50 L. ed. 867, 5 Ann. Cas. 1; Watkins v. Watkins, 125 Ind. 163, 25 N. E. 175, 21 Am. St. 217; In re Ellis Estate, 55 Minn. 401, 56 N. W. 1056, 23 L. R. A. 287n, 43 Am. St. 514; Vanfossen v. State, 37 Ohio St. 317, 41 Am. Rep. 507.

21 Hood v. State, 56 Ind. 263, 26 Am. Rep. 21, 2 Am. Cr. 165; State v. Whitcomb, 52 Iowa 85, 2 N. W. 970, 35 Am. Rep. 258.

22 Commonwealth v. Elwell, 2 Metc. (Mass.) 190, 35 Am. Dec. 398.

23 Reynolds v. United States, 98 U. S. 145, 25 L. ed. 244; United States v. Benner, Fed. Cas. No. 14568, Baldw. (U. S.) 234.

24 Commonwealth v. Bakeman, 131 Mass. 577, 41 Am. Rep. 248.

25 State v. Cutshall, 109 N. Car. 764, 14 S. E. 107, 26 Am. St. 599; Commonwealth v. Thompson, 11 Allen (Mass.) 23, 87 Am. Dec. 685; State v. Audette, 81 Vt. 400, 70 Atl. 833, 18 L. R. A. (N. S.) 527, 130 Am. St. 1061.

26 Woody v. State, 10 Okla. Cr. 322, 136 Pac. 430, 49 L. R. A. (N. S.) 479n.

27 State v. Crowley, 13 Ala. 172; People v. Knapp, 42 Mich. 267, 3 N. W. 927, 36 Am. Rep. 438; State v. Stubbs, 108 N. Car. 774, 13 S. E. 90; United States v. Bredemeyer, 6 Utah 143, 22 Pac. 110.

28 Williams v. State, 86 Ga. 548, 12 S. E. 743; State v. Henderson, 84 Iowa 161, 50 N. W. 758; Merritt v. State, 10 Tex. App. 402; United States v. Bredemeyer, 6 Utah 143, 22 Pac. 110.

neither husband nor wife could be a witness for or against the other in a prosecution for adultery.29

§ 765. Complaint of husband or wife.-Under some statutes the prosecution may be had only at the instance of the spouse of the married participant, the offense being considered as primarily against the husband or wife;30 and the fact that the prosecution was begun by the injured spouse must be proved by the state.31 Such party may withdraw the proceedings and the prosecution may go no further.32 But once begun by the spouse, it is unnecessary that such spouse cooperate further, and the court may carry on the proceeding.33 If such spouse has been divorced before the proceedings, there is no right to prosecute;34 but a divorce after the proceedings are begun can not affect them.35

§ 766. Conviction of other offense.-It has sometimes. been held that if there is a failure of proof of marriage of one party, there may be a conviction for fornication.3

36

If the evidence shows a lack of consent of the woman, it is sometimes said the crime is merged into rape,37 while in other cases it is held the state may elect as to the offense.38

29 State v. Burlingham, 15 Maine 104; State v. Armstrong, 4 Minn. 335; State v. Berlin, 42 Mo. 572.

30 State v. Bennett, 31 Iowa 24; State v. Wesie, 17 N. Dak. 567, 118 N. W. 20, 19 L. R. A. (N. S.) 786n; Stone v. State, 12 Okla. Cr. 313, 155 Pac. 701; State v. Ledford, 177 Iowa 528, 159 N. W. 187.

31 State v. Briggs, 68 Iowa 416, 27 N. W. 358.

32 People v. Dalrymple, 55 Mich. 519, 22 N. W. 20.

33 State v. Russell, 90 Iowa 569, 58 N. W. 915, 28 L. R. A. 195n.

34 State v. Bennett, 31 Iowa 24; State v. Wesie, 17 N. Dak. 567, 118 N. W. 20, 19 L. R. A. (N. S.) 786n. 35 State v. Russell, 90 Iowa 569, 58 N. W. 915, 28 L. R. A. 195n.

36 State v. Cowell, 26 N. Car. 231; Respublica v. Roberts, 2 Dall. (Pa.) 124, 1 Yeates 6, 1 L. ed. 316. But see State v. Hinton, 6 Ala. 864; State v. Pearce, 2 Blackf. (Ind.) 318.

37 Commonwealth Watts & S. (Pa.) 345.

V. Parr, 5

38 Commonwealth v. Bakeman, 131 Mass. 577, 41 Am. Rep. 248.