Bodiford v. State

86 Ala. 67

• Court: Supreme Court of Alabama
• Decided: December 15, 1888
• Status: Published

Opinion

STONE, C. J.

To constitute a living in adultery, within the statute — Code of 1886, § 4012 — a single, or occasional act, without more, is not sufficient. There must be continuation, or an agreement for continuation, coupled with one or more acts, before it can be affirmed that the relation is established. It is a crime of darkness and secrecy, and hence always difficult of direct proof. On this account it is held, that when acts and complicating circumstances are proved, it becomes largely a question for the jury to determine, whether there was in fact such continuation as amounted to a living together, or, what is equivalent to it, a mutual guilty consent, express or implied, for such continuation. And the parties need not occupy the same dwelling, if there was a mutual expectation and understanding that the relation was to be kept up, or if in fact it was kept up, so as to satisfy the jury beyond a reasonable doubt (or, its equivalent, to a moral certainty) that there must have been such understanding.

As the antithesis of this, however, a single act, or occasional acts, not indicating a consentive, or pre-arranged continuation of the illicit conduct, would not be a living together within the meaning of the statu+e.—Collins v. State, 14 Ala. 608; Quartemas v. State, 48 Ala. 269 ; Hall v. State, 53 Ala. 463 ; Clark’s Manual, § 1546 ; State v. Crowley, 13 Ala. 172.

The proof of adulterous cohabitation within twelve months before the indictment was found, was not very full; but, considered in connection with their proven previous conduct, it was sufficient to authorize its submission to the jury.

There was a separate exception reserved to three charges given at the instance of the State. The' Circuit Court, in each of these rulings, stated the law correctly, as we have declared it above.

Affirmed.