I. NATURE OF OFFENCE. CHAPTER XXXII. FORNICATION. Fornication not a misdemeanor at common law, § 1741. II. INDICTMENT. Indictment must conform to statute, at common law. III. EVIDENCE. Facts of case must be made out, § 1744. IV. VERDICT. May be conviction of, under indict- I. NATURE OF OFFENCE. § 1741. It is not proposed to treat, in this place, of the proNot a mis- ceedings established by the statutes of the several States demeanor 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 among the subjects of criminal action. Fornication, as an individual offence, however, has been said to be a misdemeanor at common law;1 and though the better opinion would seem to be, that unless the offence partakes of the nature of public and offensive lewdness, it is not at common law indictable,2 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.3 1 State v. Cox, N. C. Term R. 165. Smith, 32 Tex. 167. See Crouse v. See supra, § 1717. State, 16 Ark. 566. 2 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, 5 Rand. 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. Supra, § 1733. For definition see Hood v. State, 56 Ind. 263. The North German Code has struck 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 at 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.1 must con The fact that the defendants are not married to each other need not, as a general rule, be averred, when the stat- Indictment utory term "fornication" is used; 2 and the prece- form to dents in use mostly rest on this view. In Massachu- statute. setts, however, and in those States in which fornication has a special penalty when committed with single women, implying that there is a class of fornication not so limited, it is necessary to aver that the parties were single and unmarried. in other words, fornication is used as a nomen generalissimum to cover sexual intercourse with both unmarried and married, and when different penalties are 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. Wherever, § 1744. The prosecution must show as part of its case that the parties were not married to each other.5 How illicit intercourse is to be established has been already discussed. Resemblance of an infant to the alleged father cannot be proved by inspection." tempts 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). Facts of case must out. be made 4 Com. v. Murphy, 2 Allen, 163. 5 Territory v. Whitcomb, 1 Mont. 359. Supra, § 1733. Evidence that the complainant, in a bastardy process, had criminal intercourse with a man, other than the 2. When a woman is seduced under respondent, less than seven and a half promise of marriage. 3. When a girl under sixteen, with or without promise of marriage, is seduced. Berner, Lehrbuch, &c. § 186. 1 Supra, § 1730. 2 State v. Gooch, 7 Blackf. 468. 8 Whar. Prec. in loco. 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. Keniston v. Rowe, 16 Me. 38; Risk v. State, 19 Ind. 152; State v. Danforth, 48 Iowa, 43. 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,1 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 convict n of under indictment for adultery. § 1746. Where the doctrine of merger obtains, the defendant, in a prosecution for fornication, must be acquitted if rape be proved.2 1 Supra, § 1737. 2 Supra, § 1344; Wh. Cr. Pl. & Pr. § 464; Com. v. Parr, 5 W. & S. 345, 506 cited supra, § 554; State v. Lewis, 48 Iowa, 578. Supra, §§ 1344, 1724. CHAPTER XXXIII. ILLICIT COHABITATION: INCEST: "MISCEGENATION." I. ILLICIT COHABITATION. Single act does not prove offence, Statutes must be followed in indict- Proof is inferential, § 1748 a. II. INCEST. Constituents of offence must be made May be conviction of an indictment Is an offence at common law, § 1749. III. "MISCEGENATION." Offence is statutory, § 1754. I. ILLICIT COHABITATION. § 1747. STATUTES exist in does not prove of many States making specifically indictable illicit cohabitation. In some aspects (e. g. Single act when the offence is a common scandal) such cohabitation is a nuisance, and may be indicted as such. But fence. there may be cases of "illicit cohabitation," or "living in adultery," 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. A deliberate continuance in a state of adultery or fornication, though only for a short time, must be shown. But living together 1 See supra, § 1446. 2 Com. v. Calef, 10 Mass. 153; Searls v. People, 13 Ill. 597; Miner v. People, 58 Ill. 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 Ala. 554; Quartemas v. State, 48 Ala. 269; State v. Crowner, 56 Mo. 147; Richardson v. State, 37 Tex. 346; State v. Moore, 1 Swan, 136; People v. Gates, 46 Cal. 52. 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 illicit intercourse must be shown. Com. v. Catlin, 1 Mass. 8. But 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 "1 adulterously for a single day is "living together in adultery." And when the statute uses the term "notorious," notoriety must be proved.2 Statutes must be followed in § 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 indictindictment. ments must be applied.3 One distinctive feature may here be noticed, that a continuando, though proper, is not generally essential.1 - The question of joinder of defendants is the same as in adultery, and has been already noticed.5 inferential. § 1748 a. The evidence, in cases of this class, is of the same Evidence character as that by which adultery is established." Unless "reputation" is made by statute an element of the offence, proof of such reputation is inadmissible. Confessions are admissible in such cases, subject to the cautions already expressed. 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, &c., “ cohabiting together,” “together” is essential to the offence. Delaney v. People, 10 Mich. 241; State v. Byron, 20 Mo. 210. The sexes of the participants need not be specifically averred. McLeod v. State, 35 Ala. 395. "Lewdness," under the statute, does not by itself require the elements of publicity and notoriety. Com. v. Lambert, 12 Allen, 177. 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. 1 Hall v. State, 53 Ala. 463. See State, 8 Mo. 494." State v. Way, 5 Neb. 283. 2 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. The offence consists of an open and 508 Supra, § 1730; Whart. Cr. Pl. & Pr. §§ 220 et seq. 4 State v. Glaze, 9 Ala. 283; Hinson v. State, 7 Mo. 244. See Com. v. Wood, 4 Gray, 11. 5 Supra, § 1730. Supra, § 1733. 7 Buttram v. State, 4 Cold. 171. |