State v. Alamanio

New York Court of General Session of the Peace

State v. Alamanio

104 A. 66, 30 Del. 133, 7 Boyce 133, 1918 Del. LEXIS 33

CourtNew York Court of General Session of the Peace

DecidedMay 7, 1918

DocketIndictment No. 28

StatusPublished

This text of 104 A. 66 (State v. Alamanio) is published on Counsel Stack Legal Research, covering New York Court of General Session of the Peace primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

State v. Alamanio, 104 A. 66, 30 Del. 133, 7 Boyce 133, 1918 Del. LEXIS 33 (N.Y. Super. Ct. 1918).

Pincite

Opinion

Rice, J.,

delivering the opinion of the court:

The indictment in this case charges the defendant Vincenzo Alamanio with adultery in the following language:

“The grand inquest for the state of Delaware, and the body of Newcastle county, on their oath and affirmation, respectively, do present that Vincenzo Alamanio, late of Wilmington hundred in the county aforesaid, on the seventeenth day of March in the year of our Lord one thousand nine hundred and eighteen, with force and arms, at Wilmington hundred in the county aforesaid, being then and there an unmarried man, did commit adultery by then and there having carnal knowledge of the body of one Carmello Discorso, the said Carmello Discorso being then and there the wife of a man other than the said Vincenzo Alamanio, to wit, of one John Discorso, against the form of the act,” etc.

[135]*135To this indictment the defendant demurred on the ground:

“ That the indictment states that the defendant is an unmarried man, and the crime of adultery under the statutes of the state of Delaware cannot be committed by an unmarried person.”

Chapter 264, Laws of Delaware, volume 29, which is an amendment to section 8, chapter 153, Rev. Code 1915, provides as follows:

“4788a. Section 8a. . Adultery is the sexual intercourse of two.persons either of whom is married to a third person.

“4788b. Section 8b. A person who commits adultery is guilty of a midsemeanor.”

It appears from the statute that adultery is defined to be “the sexual intercourse of two persons either of whom is married to a third person,” and irrespective of what the common law may be with respect to this offense, or what it may be under the statutes of other states, the court is clearly of the opinion, that under our statute if either of two persons having sexual intercourse is married to a third person, then either or both of the parties to the intercourse may lawfully be indicted charged with committing the act of adultery.

The demurrer is overruled.

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Rice, J.,

delivering the opinion of the court:

The indictment in this case charges the defendant Vincenzo Alamanio with adultery in the following language:

“The grand inquest for the state of Delaware, and the body of Newcastle county, on their oath and affirmation, respectively, do present that Vincenzo Alamanio, late of Wilmington hundred in the county aforesaid, on the seventeenth day of March in the year of our Lord one thousand nine hundred and eighteen, with force and arms, at Wilmington hundred in the county aforesaid, being then and there an unmarried man, did commit adultery by then and there having carnal knowledge of the body of one Carmello Discorso, the said Carmello Discorso being then and there the wife of a man other than the said Vincenzo Alamanio, to wit, of one John Discorso, against the form of the act,” etc.

[135]*135To this indictment the defendant demurred on the ground:

“ That the indictment states that the defendant is an unmarried man, and the crime of adultery under the statutes of the state of Delaware cannot be committed by an unmarried person.”

Chapter 264, Laws of Delaware, volume 29, which is an amendment to section 8, chapter 153, Rev. Code 1915, provides as follows:

“4788a. Section 8a. . Adultery is the sexual intercourse of two.persons either of whom is married to a third person.

“4788b. Section 8b. A person who commits adultery is guilty of a midsemeanor.”

It appears from the statute that adultery is defined to be “the sexual intercourse of two persons either of whom is married to a third person,” and irrespective of what the common law may be with respect to this offense, or what it may be under the statutes of other states, the court is clearly of the opinion, that under our statute if either of two persons having sexual intercourse is married to a third person, then either or both of the parties to the intercourse may lawfully be indicted charged with committing the act of adultery.

The demurrer is overruled.

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Bluebook (online)

104 A. 66, 30 Del. 133, 7 Boyce 133, 1918 Del. LEXIS 33, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-alamanio-nygensess-1918.