Collins v. State

14 Ala. 608

• Court: Supreme Court of Alabama
• Decided: June 15, 1848
• Status: Published

Opinion

COLLIER, C. J.

The third section of the sixth chapter of the penal code enacts, that “ if any man and woman shall live together in adultery or fornication, each of them shall be deemed guilty of a misdemeanor, and shall, upon the first conviction, be fined,” &c. Clay’s Dig. 431. Under this enactment it has been strongly intimated, that if the adulterous connection existed but for a single day, the parties might be convicted of the offence of thus living together. The State v. Glaze, 9 Ala. Rep. 283. The statute óf Indiana employs the terms living together in open and notorious adultery; it has been held that an occasional illicit intercourse does not constitute the offence. Wright v. The State, 5 Blackf. R. 358. In North Carolina the offence is characterized by the words unlawful bedding and cohabiting together of a male and female, and it has been decided that a conviction is authorized by showing an habitual surrender of the person of the one to the sensual gratification of the other. The State v. Jolly and another, 3 Dev. & Bat. L. Rep. 110.

In the case at bar, the supposed paramour of the defendant lived but a half mile from his family residence, he visited and remained with her all of one night every week, for seven months, and sometimes oftener. This we think is quite sufficient to make out a living together, within the meaning of the statute. It is not an indispensable element in the offence, that he should have abandoned his own home and taken up his abode with the adultress, or that he should have taken her to his own house, made her supreme in his affections, and excluded his wife from the c'o njugal bed. The sleeping under the same roof, and in the same bed at stated nights, must be regarded as a living together, within the language and intention of the statute. Such a course of conduct, persevered in for such a length of time, must become open and notorious, and so far as the outrage upon decency and morality is concerned, can be little less objectionable than making her the partner of his own bed and board.

If the offence charged had been an occasional act of criminal intimacy, it would be punishable only in foro conscience — municipal justice could not reach it. But the evidence of guilt went far beyond this, and we have seen, sustains the verdict. The judgment of the circuit court of Barbour is consequetly affirmed.