§ 767. Living in adultery-Illicit cohabitation.-The foregoing discussion has been confined to cases in which proof of a single act of intercourse is sufficient to sustain an indictment.

There are some statutes which punish the offense of living in adultery; that is, where a man and woman, not married to each other, live together openly and notoriously as if husband and wife.39 The theory of such statutes is that there is no offense to the public in illicit intercourse until the element of indecency and public immorality enters. It is usually held that living in the same habitation together is necessary to a conviction under such statutes.40 The contrary is also held.11 A single act of illicit intercourse does not constitute this offense, there must be continuous living together.42 But a single act may be sufficient if there is also cohabitation.43 And living together adulterously a single day may be enough.** Clandestine, though continuous, acts of intercourse do not make the crime, for it is open and notorious living together which constitutes the offense.45

Under some statutes, however, it is no defense that the intercourse is secret, or mere habitual illicit intercourse is made adultery. Under these statutes it is not necessary to the offense that either party be married.

39 Richey v. State, 172 Ind. 134, 87 N. E. 1032, 139 Am. St. 362n, 19 Ann. Cas. 654; Carotti v. State, 42 Miss. 334, 97 Am. Dec. 465. See generally note to 113 Am. St. 271.

40 Richey v. State, 172 Ind. 134, 87 N. E. 1032, 139 Am. St. 362n, 19 Ann. Cas. 654n; Bird v. State, 27 Tex. App. 635, 11 S. W. 641, 11 Am. St. 214.

41 Bodiford v. State, 86 Ala. 67, 5 So. 559, 11 Am. St. 20; Winkles v. State, 4 Ga. App. 559, 61 S. E. 1128.

42 Hall v. State, 88 Ala. 236, 7 So. 340, 16 Am. St. 51; Wright v.

State, 5 Blackf. (Ind.) 358, 35 Am.
Div. 126; Carotti v. State, 42 Miss.
334, 97 Am. Dec. 465; Swancoat v.
State, 4 Tex. App. 105.

43 Bird v. State, 27 Tex. App. 635,
11 S. W. 641, 11 Am. St. 214.
44 Hall v. State, 53 Ala. 463.

45 People v. Salmon, 148 Cal. 303, 83 Pac. 42, 2 L. R. A. (N. S.) 1186n, 113 Am. St. 268n; Richey v. State, 172 Ind. 134, 87 N. E. 1032, 139 Am. St. 362n, 19 Ann. Cas. 654; State v. Chandler, 132 Mo. 155, 33 S. W. 797, 53 Am. St. 483; Boswell v. State, 48 Tex. Cr. 47, 85 S. W. 1076, 122 Am. St. 731.

46

§ 768. Attempt to commit adultery.-In some states where both parties may be convicted for an adulterous act solicitation to commit adultery is punishable as an attempt." The better rule seems to be that it is not an attempt, not an overt act leading to the crime and is not indictable. Especially is this true where the one who solicits is unmarried and under the statute incapable of committing the offense.48

§ 769. Presumptions-Burden of proof-Weight and sufficiency. It is not essential that the state prove that the alleged adulterer's spouse was living at the time of the offense charged; proof that he was alive within one year prior thereto sustains the rebuttable presumption that he still lived.49 The fact of commencement of the prosecution for adultery by the wife of the defendant is not such a element of the crime charged as to require proof thereof beyond a reasonable doubt.50 A preponderance of the evidence will suffice.51 Where there is evidence that at the time of the offense accused was married to one other than his alleged paramour, a variance between the allegation and evidence as to the name of the wife of the accused is not material.52 The act of adultery may be established by circumstantial evidence.53 Evidence of illicit conduct prior to the two years has been competent in corroboration.54 Evidence merely of

46 State v. Avery, 7 Conn. 266, 18 Am. Dec. 105.

47 Smith v. Commonwealth, 54 Pa. St. 209, 93 Am. Dec. 686; State v. Butler, 8 Wash. 194, 35 Pac. 1093, 25 L. R. A. 434, 40 Am. St. 900; Cole v. State (Okla. Cr.), 166 Pac. 1115.

48 State v. Goodrich, 84 Wis. 359, 54 N. W. 577.

49 Simmons v. State, 79 Tex. Cr. 341, 184 S. W. 226.

50 State v. Ledford, 177 Iowa 528, 159 N. W. 187.

51 O'Hern v. State, 12 Okla. Cr. 505, 159 Pac. 938.

52 Wong Goon Let v. United States, 245 Fed. 745, 158 C. C. A. 147.

53 Reinhardt v. State, 101 Nebr. 667, 164 N. W. 654.

54 State v. McGlammery, 173 N. Car. 148, 91 S. E. 371.

the disposition of the accused to indulge in the act of sexual intercourse and opportunity to do so are not sufficient to sustain a conviction.55 The indictment need not allege the name of the spouse of the accused. Even if the name is alleged it may be treated as surplusage.56

55 State v. Riley, 177 Iowa 313, 158 N. W. 570.

56 Simmons v. State, 79 Tex. Cr. 341, 184 S. W. 226.

§ 770. Definition and history.-The crime of bigamy or polygamy consists in marrying one person when already legally married to another. In earliest times bigamy was an ecclesiastical offense, but by statute, 1 James I, chapter 11, it was made a felony. In our states the offense is statutory, though one early decision holds it a common-law misdemeanor.2

§ 771. Elements of offense.-The gist of the offense is a marriage, while there is in existence a valid prior marriage undissolved by death of the other spouse, presumption of death or divorce, with criminal intent.

Each of these elements, the second marriage, the valid prior marriage, and the intent to do an act prohibited by law,

1 Cannon v. United States, 116 U. S. 55, 29 L. ed. 561; Murphy v. Ramsey, 114 U. S. 15, 29 L. ed. 47; Nelms v. State, 84 Ga. 466, 10 S. E. 1087, 20 Am. St. 377; State V. Stewart, 194 Mo. 345, 92 S. W. 878,

112 Am. St. 529, 5 Ann. Cas. 963. See generally note to 126 Am. St. 201-219.

2 State v. Darrah, Houst. Cr. C. (Del.) 321; State v. Burns, 90 N. Car. 707.

must concur to support conviction. Bigamous cohabitation is not an element of the crime but statutes frequently punish this as a separate offense, and cohabitation under the second marriage may be punished as adultery.3

§ 772. Jurisdiction.-The prosecution must be where the crime, that is, the second marriage, was committed; and one can not be prosecuted in one state for a bigamous marriage entered into in another. But under a statute which punishes bigamous cohabitation, it does not matter whether the second marriage was contracted in the state; and there are also statutes punishing the leaving of the state with intent to contract a bigamous marriage, which intent is carried out.

§ 773. Valid prior marriage.-A valid prior marriage is an essential element of the crime, a part of the corpus delicti,' and usually the part with which the evidence is most concerned and over which questions of law most frequently arise. It is necessary, unless common-law marriages are recognized, to show that the parties declared before some authorized person, that they took each other for man and wife, and it is immaterial whether they afterward cohabited, or had sexual intercourse. The law of the place where the marriage took place determines its validity.10

3 Owens v. State, 94 Ala. 97, 10 So. 669; Hildreth v. State, 19 Tex. App. 195.

4 Johnson v. Commonwealth, 86 Ky. 122, 5 S. W. 365, 9 Am, St. 269; State v. Ray, 151 N. Car. 710, 66 S. E. 204, 134 Am. St. 1005, 19 Ann. Cas. 566.

5 State v. Stewart, 194 Mo. 345, 92 S. W. 878, 112 Am. St. 529, 5 Ann. Cas. 963. But see State v. Ray, 151 N. Car. 710, 66 S. E. 204, 134 Am. St. 1005, 19 Ann. Cas. 566.

• Rex v. Brinkley, 14 Ont. L. R. 434, 10 Ann. Cas. 407.

7 Dumas v. State, 14 Tex. App. 464, 46 Am. Rep. 241.

8 State v. Patterson, 24 N. Car. 346, 38 Am. Dec. 699.

9 Commonwealth v. Lucas, 158 Mass. 81, 32 N. E. 1033; Gise v. Commonwealth, 81 Pa. St. 428.

10 Scoggins v. State, 32 Ark. 205; State v. Johnson, 12 Minn. 476, 93 Am. Dec. 241.