parties offending to prevent or suspend the prosecution by their intermarriage, if such marriage can be legally solemnized, and upon the payment of the costs of such prosecution."

§626. Proof."The offense of adultery shall be sufficiently proved by circumstances which raise the presumption of cohabitation and unlawful intimacy."

day of

A. D.,

STATEMENT OF THE OFFENSE OF ADULTERY AND FORNICATION. Commence as in form on page 35) that C. D., on the 18-, and on divers other days and times, as well before as after that day, at, etc., in the said county, at the times aforesaid, being a married (or “single”) man having a lawful wife then living, and E. F.3 at the times aforesaid being a married (or "single") woman, having a lawful husband then living, and at all of the said times not being married to each other, unlawfully and wrongfully did live together in an open state of adultery,* (or “fornication” or “adultery and fornication"), contrary to the form of the statute in such case made and provided (conclude as in form on page 35).

1 R. S., 563 § 11. As to the construction of the statute of Iowa, see State v. Dingee, 17 Iowa, 232; State v. Roth, 17 Iowa, 336. At common law neither adultery nor fornication was indictable. Barb. Cr. L., 222; State v. Moore, 1 Swan Tenn., 136; State v. Smith, 32 Texas, 167; Anderson v. Com., 6 Rand., 627; State v. Brunson, 2 Bailey, 149; Com. v. Isaacks, 5Rand., 634. R. S., 354, § 12; Baker v. U. S., 1 Pin. Wis., 641; State v. Tully, 18 Iowa, 88.

66

"Where the indictment alleged that the adultery was committed with "Adaline Winders," and the proofs showed that it was committed with 'Mary Adaline Winders," the variance was held to be fatal. State v. Dudley, Wis., 664; State v. Krisher, 24 Wis., 64; State v. Kube, 20 Wis., 217. 'An allegation that the parties were not married to each other is indispensable. Moore v. Com., 6 Met., 643; State v. Clinch, 8 Iowa, 401.'

"Criminal intercourse between an unmarried person and another unmarried person of the opposite sex is fornication. Com. v. Putnam, 1 Pick., 136. If only one of the parties is married, the act of sexual intercourse between them is adultery in the one married and, fornication in the other. Miner v. People, 58 Ills., 59; Hull v. Hull, 2 Strob. Eq., 174; State v. Wallace, 9 N. H., 515; Hunter v. United States, 1 Pin., 91; Com. v. Call, 21 Pick., 509; but since each is an accessory to the offense of the other, it is presumed that the married person may be convicted of fornication. and the unmarried person of adultery; R. S., 393, § 274, 275; State v. Pearce, 2 Blackf., 318; State v. Henton, 6 Ala., 864; State v. Wallace, 9 N. H., 518; Warden v. State, 18 Ga., 264; contra, Resp v. Roberts, 2 Dall., 124; Com. v. Wentz, 1 Ashm., 269. Criminal intercourse between two persons, if both are married, is adultery in both. Hinton v. United States, 1 Pin. Wis., 91.

§ 627. Evidence. In order to constitute the crime of adultery or fornication the parties must dwell together openly and notoriously. Circumstances, to raise the presumption of unlawful intimacy, should amount to enough to produce a belief or conviction of the judgment that the parties have been in the habit of having illicit intercourse with each other as if the relation of husband and wife existed; one sexual intercourse is not sufficient to complete the offense. In order to sustain the charge of adultery there must be proof of actual marriage.2 This may be shown by the admissions of the defendant.3 Reputation is not sufficient. On the trial of such charge, the husband is not a competent witness for or against the wife,' but he is a competent witness against the person who is alleged to have committed adultery with her. On the trial of an indictment of two persons for living in an open state of adultery with each other, a witness may testify that in passing through the room where the defendants were he heard one of them in speaking to the other admit the adultery, although he did not hear the rest of their conversation."

3. BIGAMY.

§628. Definition and Punishment.

"Whoever, having a for

mer husband or wife living, marries another person, or continues to cohabit with such second husband or wife in this state, shall be deemed guilty of bigamy, and be imprisoned in the penitentiary not less than one nor more than five years, and fined not exceeding one thousand dollars: Provided, nothing herein contained shall extend to any person whose husband or wife shall have been continually absent from such

1 Searls. v. People, 13 Ill., 597; Miner v. People, 58 Ill., 60; Baker v. U. S., 1 Pin. Wis., 641.

'Miner v. People, 58 Ill., 60; Smitherman v. State, 27 Ala., 23; State v. Wilson, 22 Iowa, 364; State v. Sanders, 30 Iowa, 582.

State v. Sanders, 30 Iowa, 582.

Miner v. People, 58 Ill., 60; Harmon v. Harmon, 16 Ill., 85; contra, State v. Bennett, 31 Iowa, 24.

State v. Dudley, 7 Wis., 664.

⚫ Com. v. Pitsinger, 110 Mass., 101.

person for the space of five years together, prior to the said second marriage, and he or she not knowing such husband or wife to be living within that time. Also, nothing herein contained shall extend to any person that is, or shall be at the time of such second marriage, divorced by lawful authority from the bands of such former marriage, or to any person where the former marriage hath been by lawful authority declared void."

$629. Proof and Venue. "It shall not be necessary to prove either of the marriages by register or certificate thereof, or other record evidence; but the same may be proved by such evidence as is admissible to prove a marrriage in other cases. The offense may be alleged to have been committed, and the trial may take place in the county where cohabitation shall have occurred."2

§630. Marrying a Bigamist. — “If any man or woman being unmarried shall knowingly marry the husband or wife of another, or continue to cohabit with such husband or wife in this state, such man or woman shall be fined not more than five hundred dollars, or confined in the county jail not exceeding one year, or both, in the discretion of the court."

STATEMENT OF THE OFFENSE OF BIGAMY.

day of

(Commence as in form on page 35) That C. D., on the A. D. 18, at the town of in the county of and state of F.; and that the said C. D. afterwards, wife, and during her life, to wit., on the

-, did lawfully marry one E. while having the said E. F. for his

1R. S., 355, 28.

2 Id., 356, § 29.

'Id., § 30.

For another form, see Jackson v. People, 2 Scam., 232; Com. v. Godsoe, 105 Mass., 464.

An indictment need not state when or where the first marriage took place. State v. Bray, 13 Ired., 289; contra, State v. Labore, 26 Vt., 765; nor that it subsisted at the time of the second marriage, if it alleges that the first wife was then alive. State v. Norman, 2 Dev., 222.

-

– day of ——, A. D. 18—, at, etc., in said county, feloniously' did marry' one G. H., the said E. F., his former wife, being then, at the time last aforesaid, alive, contrary to the form of the statute in such case made and provided (conclude as in form on page 35).

STATEMENT OF THE OFFENSE OF KNOWINGLY MARRYING THE WIFE OF

(Commence as in form on page 35) that C. D., on etc., at, etc., in the said county, then and there being unmarried, unlawfully, knowingly, and feloniously did marry one E. F., the said E. F. then and there being the wife of G. H., as the said C. D. then and there well knew, contrary to the form of the statute in such case inade and provided (conclude as in form on page 35).

8631. Evidence.-The Prosecutor must Prove the First and Second Marriages, and that at the time of the Second Marriage the former Husband or Wife was Alive. The statute makes the certificate of the officer performing the ceremony filed with

8

'The word feloniously is usually inserted. 3 Chitty Cr. L., 719; Jackson v. People, 2 Scam., 232.

"Where the second marriage took place out of the state, cohabitation in the state and county in which the trial is had after such second marriage and that such second marriage was unlawful where it took place, must be alleged and proved. State v. Palmer, 18 Vt., 570; 1 Camp., 61; People v. Lambert, 5 Mich., 349; Rex. v. Fraser, 2 Russ. & M., 407; otherwise the prisoner must be acquitted. People v. Mosher, 2 Park. Cr. C., 195; State v. Palmer, 18 Vt., 570. And where the first marriage was celebrated abroad, the prosecution must show not only the marriage in fact, but a marriage valid by the foreign law. People v. Lambert, 5 Mich., 349.

'The omission of the middle letter of the name, is not a defect. State v. Williams, 20 Iowa, 98; State v. Thompson, 19 Iowa, 298; Moore's Civil Pr., page 436, note 3.

The word "being" generally, unless connected with some other matter, will relate to the time of the indictment, rather than to the time of the commission of the offense. 1 Bish., Cr. P., § 410.

It is necessary to negative the proviso in the statute. State v. Abbey, 29 Vt., 60; Lequat v. People, 11 Ills., 330; Metzker v. People, 14 Ills., 102; State v. Williams, 20 Iowa, 98.

'Bigamy is an offense created by statute. 1 Bish., Cr. L., § 512; therefore an indictment should conclude against the form of the statute, ante, page 37. 'An indictment following substantially the words of our statute was held sufficient in Com. v. Whaley, 5 Bush, Ky., 266.

8 Barb. Cr. L., 213; Conant v. Griffin, 48 Ill., 415; Shafer v. Ohio, 20 Ohio, 3; Weinberg v. State, 25 Wis., 370.

the county clerk or a certified copy of the registry evidence of the marriage of the parties. Such certificate should be accompanied with the proof of the identity and probably of the official character of the celebrator.2 It is sufficient to show that a marriage was in fact celebrated according to the law of the country in which it took place, even though it was voidable if it was not absolutely void. This may be shown by any person present at the marriage without proof of any license or other record evidence. Proof by a clergyman that he married a person by the same name as the alleged parties to the first marriage is is not sufficient without some addition al evidence that the prisoner was one of the parties married." But if the clergyman testifies that he believes the prisoner to be the person he married it will be sufficient. Neither marriage can be sufficiently proved by reputation alone; but either marriage may be proved by the deliberate admissions of the accused himself.s

§ 632. When Husband or Wife may be a Witness - Effect of the Absence of Evidence of being Alive. If it is clearly proved that the prisoner had another husband or wife at the time of the

'R. S., 695, 12.

23 Greenl. Ev., § 204.

*3 Inst., 88, Stark. Ev., 1185; 3 Greenl. Ev., § 204; State v. Barefoot, 2 Rich, 209; Weinberg v. State, 25 Wis., 370.

R. S., 356, § 29, ante § 629; Jackson v. People, 2 Scam., 231; Rex v. Alison, Russ. & Ry., 109; 2 Arch. C. P. & Pl., 1029; Moore's Case, 9 Leigh, 639; State v. Kean, 10 N. H., 347; Wolverton v. Ohio, 16 Ohio, 176; Warner v. Com., 2 Va. Cas., 95; Com. v. Putnam, 1 Pick., 136; State v. Williams, 20 Iowa, 98; State v. Wilson, 22 Iowa, 364,

'People v. Steer, 2 City H. Rec., 111.

6

People v. Whigham, 1 Wheeler C. C., 115.

Harman v. Harman, 16 Ill., 85; Miner v. People, 58 Ill., 60; Myatt v. Myatt, 44 Ill., 473.

R. S., 356, § 29, ante § 629, 3 Greenl Ev., § 204; Harmon v. Harmon 16, Ill., 85; Miner v. People, 58 Ill., 60; Woolverton v. State, 16 Ohio, 173; Weinberg v. State, 25 Wis., 370; Fenton v. Reed, 4 John., 52; State v. Sanders, 30 Iowa, 582; State v. Ham., 11 Me., 391; Ceyford's Case, 7 Green), 57; Rex 0. Summons, 1 Car. & R., 167; contra, Gahan v. People, 1 Park. C. R., 378; Clayton v. Wardell, 4 Com., 230; People v. Humphrey, 7 John., 314; Com. v. Littlejohn, 15 Mass., 163; State v. Russell, 6 Conn., 446; Kebly o. Rucker, 1 A. K. Marsh, 290.