Ohio v. Connoway

1 Tapp. Rep. 90

• Court: Jefferson County Court of Common Pleas
• Decided: December 15, 1816
• Status: Published

Opinion

President.

Gentlemen of the Jury: The statute law on which this indictment is founded, enacts that “if any married man.shall hereafter desert his wife, and live and cohabit with any other woman in a state of adultery,” “ every person so offending, upon conviction thereof, shall be fined in any sum not exceeding two hundred dollars,” &c. To warrant you in finding a verdict against the defendant, it is necessary that you should be satisfied, from the evidence, that he has committed the offence described in the indictment and law; for, however loose and immoral his conduct may have been, however deserving of reprobation and punishment, unless he is proven guilty of the specific offence charged, he must be acquitted. To be guilty of this offence, then, he must be a married man — -he must have deserted his wife — and he must have lived and cohabited with another woman, in a state of adultery. That the defendant is a married man, is admitted — that he deserted his wife for a time, may be inferred from the evidence. Did he live and cohabit with Jewet Eversole in a state of adultery?

Cohabiting means a living together in one house; a boardiug or tabling together; it carries with it the idea of a fixed residence. As all the members of a family living together, cohabit with each other, it would be an unwarrantable extension of the term Cohabit, in this act, to include in it persons travelling in company through the country The defendant must not only have lived and cohabited with this female, but he must have lived and cohabited with her in a state of adultery.

The statute law gives no answer to the question, What is Adultery? The term, then, must be considered as used in a strictly appropriate sense, not loosely but definitely. Adultery, .is when a married woman shall have sexual intercourse with any other person than her husband. Such intercourse is adultery in both the parties. It is called adultery, from its tendency to produce an adulterated, spurious or counterfeit issue. No other connection between the sexes is adultery, for from no other connection can such consequences follow. Whatever sexual intercourse there may have been between the defendant and Jewet Eversole, he cannot have committed adultery with her, because she is an unmarried woman; a living and cohabiting with such a woman cannot be in a state of adultery. therefore, that your verdict must be for the defendant.

Verdict, not guilty.