Brown v. State, 108 Ala. 18 (Ala.)

BKICKELL, C. J.

Adultery, “the voluntary sexual intercourse of a married person with one not the husband or wife,” is not the offense, but an element or constituent of the offense, the statute renders indictable.— Cr. Code, § 4012. As has been often explained, the statute is directed against a state or condition of cohabitation, the parties intend to continue so long as they may choose, as distinguished from a single, or occasional act of illicit sexual intercourse. This state or condition may well be assumed in a single day, if the parties so design, as any other state or condition may be so assumed. If for a single day, they live together in adul-ter3>-, intending a continuance of the connection, the offense is committed, though the cohabitation may be broken off, or interrupted, from any cause whatever.— Hall v. State, 53 Ala. 463; Lawson v. State, 20 Ala. 65 ; Collins v. State, 14 Ala. 608 ; State v. Glaze, 9 Ala. 283. It is but seldom the offense, in its entirety, is capable of direct, positive proof; it is generally to be inferred from facts and circumstances, leading to it as a necessary conclusion. In Lawson v. State, supra, it was said by Gold-thwaite, J.: “The fact of illicit intercourse, is one which from its nature can very rarely be directly proved, and must in the very great majority of cases be inferred from circumstances, the weight and conclusiveness of which vary according to the situation of the parties, the habits' of society, and other incidental circumstances. Facts apparently trivial and innocent in themselves, sometimes derive importance from their connection and combination with other facts.”

The fact that the defendant and the woman with her two children came to Baldwin county together, in the boat of the defendant — that she went to the house of Grass, and that a few minutes after her arrival, the defendant went to the house, and the conversation there occurring between them; the request made by the defendant of Grass to take the woman to the beach and his response ; the sending out on the beach to see if the husband of the woman could be seen ; and when it was'ascertained that he could not, their departure for the boat of defendant, and leaving in the boat with the two children . The proposal of O’Neil that the woman should

stop ac his house ; the answer of defendant in her presence, that there was a cabin on the boat in which she could be comfortable; that on the next morning the boat was at anchor a short distance from the wharf, and in the cabin there were apparent the heads of four persons, a man, a woman and two children. The manner and condition in which the defendant and the woman were living, and their conduct, when arrested in Mobile, to answer the accusation, were facts and circumstances not without relevancy, and proper for the consideration of the jury, in determining whether the state and condition to which the statute is directed, had been assumed. Théir sufficiency; their weight and conclusiveness; it was the province of the jury to determine under proper instructions from the court.

The immediate tendency of the evidence touching the condition in which the parties were living, and their conduct, when arrested in Mobile, was to show unlawful cohabitation in Mobile, a distinct, substantive offense, independent of that charged in the accusation ; and yet not inconsistent with, or negativing that charge. For it may well be, that at different periods of time, the relation or condition to which the statute refers may exist in two or more counties. It is true, as is insisted in the argument of counsel, that the general principle is, that evidence of a distinct, substantive offense, is not admissible in support of another offense. The rule has its exceptions, and of these a recognized exception is, that when it is material to show the intent with which the particular act or acts charged was done, evidence of another or similar act, or other similar acts, though in itself, or of themselves constituting a criminal offense, may be given. — Gassenheimer v. State, 52 Ala. 313. The state and condition in which the parties were living in Mobile, it is apparent, was assumed in but a brief space of time after the occurrence of the circumstances in Baldwin county. If subsequent to these occurrences the parties are found living in the state and condition they indicate, an inference may arise, that though there was a change in locality, the state and condition was continuous. In Com. v. Nichols, 114 Mass. 285, it was ruled, that acts of adultery between the defendant and the same woman, near the time of the adultery for which he was indicted, though committed in another county, were

proper to be proven in support of the indictment. In Lawson v. State, supra, it was held admissible to show that subsequent to the finding of the indictment, the parties were living in adultery, if' the time intervening was not of such length as to repel all reasonable inference' that there was between the two conditions continuity or connection. We find no error in the rulings of the court below as to the admissibility of evidence.

The substance of the instruction to the jury, to which an exception was reserved, is, that if the defendant and the woman agreed to go to Mobile county and there live in adultery, and in pursuance of the agreement, they did go to Mobile and live in that condition, there could be a conviction under the accusation. As we gather from the argument of counsel, the instruction was supposed to be authorized by the statute (Or. Code, § 3719), which declares that “when an offense is committed partly in one county and partly in another, or the acts, or effects thereof, constituting, or requisite to the consummation of the offense, occur in two or more counties, the jurisdiction is in either county.” It was a rule of the common law, that when an offense was constituted by a series of acts, a part of which was done in one county, and a part in another, there could be no prosecution ill either, unless so much was done in the one as would constitute a complete offense. — 1 Bish. Cr. Pr., § 54. Examples of the application of the rule will be found in 1 Chit. Cr. Law, 177; 5 Bac. Abr. Title Indictment, subdivision F. The controlling purpose of the present statute was the abrogation of the rule of the common law. A single, indivisible offense, not consisting of several parts, is not within the operation of the statute. If there was no more in Baldwin county than the agreement of the parties to live in adultery in Mobile county, however immoral the agreement was, an indictable offense was not committed. — Miles v. State, 58 Ala. 390 ; Shannon v. Com., 14 Penn. St., 226; Smith v. Com., 54 Penn. St., 209. The offense the statute denounces may have been contemplated, but it rested in contemplation merely. There was not, and could not be elsewhere than in Mobile county an attempt to commit it. An attempt to commit a crime may be indictable ; but the mere intent to commit it, unaccompanied by any act in furtherance of the intent, can not be matter of indictment. The living

together in adultery, the state or condition against which the statute is directed, in its nature and essence, is a single, indivisible offense, which can not be severed. It commences when the state or condition is assumed, and not until it is assumed ; and it is indictable only when and where the state or condition is actually and inten-. tionally entered upon and assumed. There was error in the giving of this instruction.

The instruction requested by the defendant was extracted literally from an instruction which was declared at the last term to assert a correct legal proposition.— Burton v. State, 18 So. Rep. 284. When analyzed and interpreted, the instruction means no more, than that the guilt of the accused must be fully proved — as it is usually expressed, proved beyond a reasonable doubt; and that this degree of proof is not reached, unless all reasonable supposition of innocence is excluded. When in its present form the instruction may be given, the court, ex mero motu, if apprehensive that it may unduly influence the jury, or that it may mislead them, lias the power, and it may become a duty, to explain its true interpretation and meaning. — McKleroy v. State, 77 Ala. 95.

For the errors pointed out, the judgment must be reversed and the cause remanded ; the defendan will remain in custody until discharged by due course of law.