Smith v. State

39 Ala. 554

• Court: Supreme Court of Alabama
• Decided: January 15, 1865
• Status: Published

Opinion

PHELAN, J.

The charge of the court, “that one act of criminal intimacy was not sufficient to constitute the offense” of living in adultery or fornication under our statute, was correct; but the qualification which the court gave, was not so. No previous arrangement, or agreement between the parties, can make that “ a living in adultery or fornication,” which would not be so without it. It is not necessary, to constitute “a living in adultery or fornication,” that the guilty parties should live together in the same house continually, as man and wife. Any habitual illicit intercourse between them, though Jiving apart, will constitute the offense.—Collins v. The State, 14 Ala. 609. How long such habitual illicit intercourse must be continued, is not settled. Each case must depend on its own facts; and the jury, under the rule as stated, must be left to decide upon these. Whether, under the facts of this case, such an habitual illicit intercourse as amounted to “a living in adultery or fornication” did, or did not exist, will remain for the jury to decide, in all probability, when this case goes back for another trial.

The judgment below is reversed, and the cause remanded.