Not a misat common

demeanor

law.

Forni

§ 1741. It is not proposed to treat, in this place, of the proceedings established by the statutes of the several States in cases of bastardy. They partake essentially of the character of civil process; and though in one or two instances they assume the shape of prosecutions, they cannot be regarded as belonging exclusively to criminal law. cation, according to the better view, is not in this country a misdemeanor at common law; and though the prevalent opinion appears to be, that unless the offence partakes of the nature of public and offensive lewdness, it is not at common law indictable, yet the question has been put to rest, in most of the States, by express statutory prescription. The nature of the evidence in cases of sexual intercourse has been already noticed under the head of adultery."

1 That bastardy cases are quasi criminal, see Van Tassel v. State, 59 Wis. 351; Shelton v. State, 73 Ala. 5.

2 See Pollard v. Lyon, 91 U. S. 225; State v. Way, 6 Vt. 311; State v. Cox, N. C. Term R. 165. See supra, § 1717. 3 R. v. Pierson, 2 Salk. 382; State v. Cooper, 16 Vt. 551; Smith v. Minor, Coxe's R. 16; Anderson v. Com., 5 Rand. 627; Com. v. Isaacs, Ibid. 634; Com. v. Jones, 2 Grat. 555; State v.

Brunson, 2 Bailey, 149; State v. Moore, 1 Swan, 136; Brooks v. State, 2 Yerger, 482; State v. Smith, 32 Tex. 167. See Crouse r. State, 16 Ark. 566.

Supra, § 1733. For definition, see Hood v. State, 56 Ind. 263.

As to the distinction, in respect to weight of evidence, between civil and criminal procedure in this relation, see Robbins v. Smith, 47 Conn. 182.

The North German Code has struck

II. INDICTMENT.

§ 1742. As the offence is usually statutory, the indictment must introduce the statutory requisites. The participants, as in adultery, may be jointly indicted.2

Indictment must conform to statute.

The fact that the defendants are not married to each other need not, as a general rule, be averred, when the statutory term "fornication" is used; and the precedents in use mostly rest on this view. In Massachusetts, however, and in those States in which fornication has a special penalty when committed with single women, it is necessary to aver that the parties were single and unmarried, though it is otherwise when these conditions are not essential to the offence. Wherever, in other words, fornication is used as a nomen generalissimum to cover sexual intercourse with persons both unmarried and married, different penalties being assigned to the two cases, then the indictment must either negative or affirm marriage. But this is not the case where the term is used to designate sexual intercourse by an unmarried

person.

III. EVIDENCE.

§ 1744. The prosecution must show as part of its case that the parties were not married to each other."

a line in this respect which is well worthy of notice. Declining to make fornication the subject of general prosecution, it specifies the following instances when unchastity, or attempts at unchastity, are to be punished :

1. When there is an abuse of a situation of trust or power (e. g., guardians, pastors, teachers, tutors, physicians, superintendents or attendants in hospitals and asylums).

2. When a woman is seduced under promise of marriage.

3. When a girl under sixteen, with or without promise of marriage, is seduced. Berner, Lehrbuch, etc. § 186. 1 State v. Lashley, 84 N. C. 754;

See

State v. Johnson, 69 Ind. 85. Powell v. State, 12 Tex. Ap. 238. As to jurisdiction, see McGary v. Rivington (Ohio), 2 Am. L. J. 79; 6 Crim. Law Mag. 283.

Supra, § 1730. State v. Cox, N.
C. Term. R. 165.

3 State v. Gooch, 7 Blackf. 468.
4 Whart. Prec. in loco.

5 Com. v. Murphy, 2 Allen, 163. See Hopper v. State, 19 Ark. 143.

6 Wells v. State, 9 Tex. Ap. 160. 7 Territory v. Whitcomb, 1 Mont. 359. That the indictment need not aver non-marriage, see State v. Stephens, 63 Ind. 542.

Facts of be made

case must

out.

How illicit intercourse is to be established, has been already discussed. Proof of resemblance of an infant to the alleged father may be corroborated by inspection.2 When bastardy is an ingredient in the case, it is no defence that about the time of the alleged impregnation, the woman in question had intercourse with other men.

To a charge of bastardy the marriage of the parties prior to the birth of the child is a defence.4

It has been held that the limitation that there is to be no conviction when there is reasonable doubt of guilt, does not apply to bastardy prosecutions, which are quasi civil, and are determined by preponderance of proof.5

IV. VERDICT.

§ 1745. As already seen, it has been held in some jurisdictions that on an indictment for adultery there can be a conviction of fornication, though this, on principle, is at common law open to doubt, as the offences differ not so much in degree as in kind.

May be conviction indictment

of under

for adultery.

If case be

merges.

§ 1746. Where the doctrine of merger obtains, the defendant, in a prosecution for fornication, must be acquitted rape offence if rape be proved ; and independently of the question of merger there is strong authority to the effect that where fornication implies assent in both parties, there can be no conviction unless such assent be proved.

1 Supra, § 1733.

Evidence that the complainant, in a bastardy process, had criminal intercourse with a man, other than the respondent, less than seven and a half months before the birth of her child, is inadmissible, in the absence of evidence that the birth was premature. Ronan v. Dugan, 126 Mass. 176.

2 Whart. Cr. Ev. 9th ed. § 312; but see Keniston v. Rowe, 16 Me. 38; Risk v. State, 19 Ind. 152; State v. Danforth, 48 Iowa, 43; State v. Smith, 54 Ibid. 104.

State v. Parish, 83 N. C. 613. 4 Moran v. State, 73 Ind. 208. 5 Semon v. People, 42 Mich. 141. Supra, § 1737.

1 Supra, § 1344; Whart. Cr. Pl. & Pr. § 464; Com. v. Parr, 5 W. & S. 345, cited supra, § 554; State v. Lewis, 48 Iowa, 578. Supra, §§ 1344, 1724. As to difference between fornication and rape, see People v. De Groat, 39 Mich. 124.

8 See infra, § 1751.

Offence

must be continuous and lewd.

I. ILLICIT COHABITATION.

may

§ 1747. STATUTES exist in many States making specifically indictable illicit cohabitation. In some aspects (e. g., when the offence is a common scandal) such cohabitation is a nuisance, and be indicted as such. But there may be cases of "illicit cohabitation," or "living in adultery," or "living in fornication," which are not nuisances, and which distinctively fall within the range of the statutes now before us. In such cases the evidence necessary to support a prosecution must be something more than that of a single act of adultery or fornication, or even of several such acts when disconnected and secret." A settled and recognized continuance in a state of adultery or fornication, though only for a short time, must be shown; and the

1 See supra, § 1446.

Ibid. 269; State v. Crowner, 56 Mo.

2 Smith v. State, 39 Ala. 554; Gran- 147; Richardson v. State, 37 Tex. 346; berry v. State, 61 Miss. 440.

3 Wright v. People, 13 Ill. 507.

4 Com. v. Calef, 10 Mass. 153; Searls v. People, 13 Ill. 597; Miner v. People, 58 Ibid. 59; State v. Gartrell, 14 Ind. 280; State v. Marvin, 12 Iowa, 499; McLeland v. State, 25 Ga. 477; State v. Glaze, 9 Ala. 283; Smith v. State, 39 Ibid. 554: Quartemas v. State, 48

State v. Moore, 1 Swan, 136; People v. Gates, 46 Cal. 52. As to Texas statute, see Powell v. State, 12 Tex. Ap. 238.

For other cases, see State v. Lyerly, 7 Jones (N. C.), 158; Wasden v. State, 18 Ga. 264; Maull v. State, 37 Ala. 160; State v. Byron, 20 Mo. 210; and cases cited supra, § 1721 a.

Something more than occasional il

allegation is sustained by proof of adulterous visits once a week for half a year. But living together adulterously for a single day is "living together in adultery," supposing it is part of an intended adulterous arrangement. And when the statute uses the term "notorious," notoriety must be proved. But the offence is not made out by proof of cohabitation under an honest belief in marriage.4

Statutes

§ 1748. Of the indictments for this class of cases, the statutes being so various, it is only possible at present to observe that to them the ordinary rules of statutory indictments must be must be applied. One distinctive feature may be here

licit intercourse must be shown. Com. v. Catlin, 1 Mass. 8; Searls v. People, 13 Ill. 597; Collins v. State, 14 Ala. 608; Quartemas v. State, 48 Ibid. 269; Carotte v. State, 42 Miss. 334; Collum v. State, 10 Tex. Ap. 708.

66

Exposing the person indecently to one woman is open lascivious behavior." State v. Millard, 18 Vt. 574. That there can be no conviction of "living together in fornication" "under an indictment for living together in adultery," has been held in Smitherman v. State, 27 Ala. 23. See supra, § 1745. Under a statute prohibiting lewdly, etc., "cohabiting together," "together" is essential to the offence. Delaney v. People, 10 Mich. 241; Maull v. State, 37 Ala. 160; Wells v. State, 9 Tex. Ap. 100; State v. Byron, 20 Mo. 210. "Lewdness," under the statute, does not by itself require the elements of publicity and notoriety. Com. v. Lambert, 12 Allen, 177. See Kinard v. State, 57 Mass. 132.

Collins v. State, 14 Ala. 608. 2 Hall v. State, 53 Ala. 463. State v. Way, 5 Neb. 283.

followed in indictment.

The offence consists of an open and notorious living or cohabiting together; occasional illicit intercourse will not constitute the offence. The statute was intended to provide against persons who, in defiance of morality and of the good or well-being of society, should openly live together; they must reside publicly in the face of society as if the conjugal relation existed between them; their illicit intercourse must be habitual. Wright v. State, 5 Blackf. 358; Searls v. People, 13 Ill. 597; State v. Gartrell, 14 Ind. 280; State v. Marvin, 12 Iowa, 499; Hinson v. State, 7 Mo. 244; Dameron v. State, 8 Ibid. 494." See Collum v. State, 10 Tex. Ap. 708.

• Com. v. Munson, 127 Mass. 459.

Supra, § 1730; Whart. Cr. Pl. & Pr. §§ 220 et seq.; State v. Osborne, 69 Mo. 143; Delano v. State, 66 Ind. 348; Taylor v. State, 36 Ark. 84; Edwards v. State, 10 Tex. Ap. 25; Collum v. State, Ibid. 708; King v. People, 7 Col. 224. See, also, State v. Lashley, 84 See N. C. 754; Edwards v. State, 10 Tex. Ap. 25. When the statute requires that the offence should be open and notorious, this must appear in the indictment. State v. Johnson, 69 Ind. 85. In "common habitation" means dwelling together. Sullivan v. State, 32 Ark. 187.

3 Wright v. State, 5 Blackf. 358; People v. Gates, 46 Cal. 52; State v. Crowner, 56 Mo. 147. In this case Vories, J., said: "The defendants in this case are charged with living in a state of open and notorious adultery.