93 NOTES. § 1. Abortion-Woman Must be "Quick with Child.". - At common law it is not a crime to procure an abortion with the consent of the mother when she is not yet quick with child.1 $2 - Same- New York Statute. And the same is held under the New York statute.2 $4. - Dead Fœtus. It is not abortion to attempt to expel a fœtus which has so lost its vitality that it never could have become a living child. § 5. Intent to Produce Essential. -The intent to produce abortion must be proved. Therefore, a husband who beats his wife whereby she miscarries, is not guilty of abortion if he did not intend the miscarriage to be the result of the beating.5 § 6. What is not a "Noxious Thing."—A small quantity of savin, not sufficient to do more than produce a little disturbance in the stomach is not a "noxious thing" within the English statute and as to what is a noxious thing see, also, R. v. Isaacs. $7. Manslaughter-Statutory Crime.—A person can not be convicted of manslaughter in attempting an abortion (a statutory crime), on an information charging simply manslaughter. § 8. Necessity to Save Life. Where a statute makes it an offense to administer anything to or employ any means on a pregnant woman to procure her miscarriage, "unless the same is necessary to preserve her life," and a person is indicted for using an instrument to procure a miscarriage, to convict it must be shown not only that the use of the instrument was not necessary to save the woman's life but the miscarriage also.9 § 9. Proof Required.-The proof of the offense must be clear, and an instruction that if the pregnancy and time and place of the crime are proved, and it is shown beyond a reasonable doubt that the prisoner administered drugs or used instruments with intent to produce a miscarriage he should be convicted, is erroneous.10 1 See ante Vol. III., Title, Consent; Com. v. Parker, 9 Metc. 263; State v. Cooper, 2 Zab. (N. Y.) 52; Mitchell v. Com. 78 Ky. 205 (1879); Com. v. Bangs, 9 Mass. 387 (1812); Smith v. State, 33 Me. 48 (1851). * Evans v. People, 49 N. Y. 86 (1872). R. v. Phillips, 3 Camp. 77 (1811). 4 Com. v. Wood, 11 Gray, 85 (1858). 8 People v. Olmstead, 30 Mich. 431. § 10. Adultery and Fornication-At Common Law. - Adultery, fornication and such offenses were not indictable at common law by the criminal courts.1 § 11. Living in Adultery at Common Law.-Nor is living openly in adultery indictable as a nuisance 2 unless committed in a public place as a street or highway.3 § 12. Fornication Defined. - "Fornication" is the carnal and illicit intercourse of an unmarried person with the opposite sex. It is impossible for a married man and a married woman to commit fornication. Where the woman is married the man can not be convicted of fornication. In Texas, fornication can not be committed unless both parties are unmarried. § 13. Adultery - Woman must be Married.—Adultery, at common law is sexual intercourse with a married woman by one not her husband. The learning on this point is set forth at length in the opinions of the judges in State v. Lash,' reported at length on a previous page.8 9 Therefore, to constitute the crime of adultery, it is essential that the woman should be married; and the offense can not, therefore, be committed by an un. married man,10 nor where both the parties are unmarried," nor as held in State Lash, by a married man with an unmarried woman. In a charge to the grand jury,12 GALBRAITH, J., of Pennsylvania shows very clearly that this can be the only correct and legal meaning of adultery. "I am aware," he says, "that both in scripture and in common language, the term adultery is used as a general expression of any of the classes of incontinence or want of chastity, and is also, it may be said of perjury, forgery and other terms without regard to legal provisions or of all the requisite elements necessary to constitute the offense. The marriage of a man having connection with a single woman may be well said to be an aggravation. It undoubtedly is so; he violates his marriage vow which a strict casuist might regard as a perjury in a moral case, and so it may be, and so with other offenses, there may be circumstances of aggravation attending the commission of an offense of a lower grade and legal denomination, rendering it more aggravated in a moral sense than one of a higher grade in the criminal code. A larceny may be committed under circumstances which would make it a higher offense in a moral point of view, than a robbery under other circumstances. But it is not aggravation that is to determine legal definition and description of crime, all the essential requisites, the necessary elements to constitute the crime in a legal sense, must be shown." He then proceeds to examine the meaning of the word by authority. "The word itself comes from the same root as 'adulterate,' which is defined in our dic 1 Anderson v. Case, 5 Rand. 627; 16 Am. Dec. 776 (1827); State v. Branson, 2 Bailey, 149 (1831); Smith v. Mour, Coxe (N. J.), 16 (1790); Com. v. Isaacs, 5 Rand. 634 (1826); State v. Cooper, 16 Vt. 550 (1844). State v. Rahl, 33 Tex. 76 (1870); State v. Smith, 32 Tex. 167 (1869); Com. v. Jones, 2 Gratt. 555 (1845.) 2 Id. Carotti v. State, 42 Miss. 334 (1868). 4 Montana v. Whitcomb, 1 Mont.740 (1871). tionaries, in substance, to corrupt, to debase by foreign admixture, and 'adultery' is defined, in substance, in most of our lexicons to be a violation of the marriage bed of another person.' By the Mosaic law, it is very clear, that in order to constitute adultery, the illicit sexual intercourse must be with a married woman. In the twentieth chapter of Exodus, we have the decalogue as announced from Mount Sinai, the seventh commandment of which prohibits adultery. In the twenty-second chapter and sixteenth and seventeenth verses, which is a continuation of the same authority, it is prescribed 'that if a man (without distinguishing whether married or unmarried) 'entice a maid that is not betrothed,' etc., then prescribing a punishment. This latter injunction would have been unnecessary if it was adultery, because that was already prohibited in the fourteenth verse of the twentieth chapter, the seventh commandment. The laws are repeated again in Deuteronomy; and when we read from the thirteenth to the twenty-ninth verses inclusive, of the twenty-second chapter, we perceive very clearly the distinction in a criminal point of view, between an unlawful sexual intercourse with a married woman or betrothed (regarded as the same), and an unmarried woman. The same distinction will be found in the laws of most countries, either barbarous or civilized. It is rather amusing to read the irregular and ingenious inventions of cruelty contrived to punish the crime against the rights of a husband in the laws of some of the old and barbarous countries. By the Roman law, a man was entirely justified in taking the life of the adulterer caught in the act of violating his marriage bed, and by the laws of England, he is so far justified, that his crime of taking life under those circumstances is reduced to manslaughter, which does not follow for the taking of life for the same act against any other relation than that of the husband. It is settled as the law of Connecticut, as defined by Swift, in his system of the laws of Connecticut, that adultery is 'the carnal connection of a man with another's wife. The man may be either married or single, but the woman must be married, for the essence of the crime is the adulteration of the offspring, the spuriousness of the issue. If a married man has carnal knowledge of a single woman, it is not adultery but fornication." §14. - Vermont Statute. The Vermont statute takes the same view. It provided in one section that every person committing adultery shall be punished in a certain way, and in the next section that any named man having connection with an unmarried woman, which would constitute the crime of adultery if the woman had a husband living, shall be punished, etc. "This second section," say the Supreme Court in State v. Searle, "seems to us to preclude the idea of adultery when the intercourse is with a single woman. ** The terms of the enactment constitute a legislative construction evidently based on the theory that to make out adultery, the intercourse must be such as might produce a spurious issue in a family, which could happen only when the woman was married." * 15. "Living in Adultery"-Acts must be Frequent One act does not constitute the offense, though it was the result of a previous arrangement between the parties and occasional acts do not constitute the offense. A 1 Gen. Stat., ch. 117. 2 56 Vt. 516 (1884). Smith v. State, 39 Ala. 554 (1865); Morrill v. State, 5 Tex. (App. ) 447 (1879). 4 State v. Gattrell, 14 Ind. 280 (1860). Mississippi casel was held not within the statute where the parties lived under the same roof as master and servant, and there were occasional acts of intercourse between them. In another, Hannah Boyd was a pupil of the defendant during a scholastic term of three months, she half a dozen times remained after the other scholars had left and had intercourse with her teacher. This was held not "habitual sexual intercourse within the statute."2 In Richardson v. State, it is said: "The crime of living in adultery is not made out in this case. The evidence shows facts from which it may well be inferred that the appellants had carnal intercourse with each other as many as half a dozen times, and that the woman was married and had a husband living; but they did not live together in any legal sense; the visits of the man to his mistress were occasional and stolen." In Quartemas v. State, the male defendant was keeper of a jail, where he slept; the female defendant, a woman named Jackson, lived outside. It was proved that the woman had been seen several times in the jailer's room in bed with him, and coming out at night. This was held not within the statute. "Occasional acts of criminal intercourse," said the court, "do not make out the offense named in the statute." § 16. "Open and Notorious Adultery" "open and notorious adultery." Occasional intercourse is not Under the Illinois statute requiring " an open state of adultery;" the living together must be open and notorious, as if the relation of husband and wife existed; the illicit intercourse must be habitual. 7 98 § 17. Same-Notority of Cohabitation must be Proved. - In People v. Gates, the court said: "The defendant was convicted of the crime of living in open and notorious cohabitation and adultery with a certain woman named in the indictment. The conviction was had under the second section of the act of 1872, entitled 'An act to punish adultery.' The offense consists in living ' in a state of open and notorious cohabitation and adultery;' the notoriety is as material in making out the offense as is the fact of adultery committed. In this case, while the evidence tends in some degree to show that the defendant committed adultery with the woman named in the indictment, there is not the slightest proof of a living with her in a state of notorious adultery or cohabitation within the intent of the statute. Judgment reversed, and case remanded for a new trial." $ 18.- Slaves. In North Carolina it was held not fornication or adultery for emancipated slaves who have cohabited together while slaves to continue to do so in the relation of husband and wife without other ceremony.10 § 19. Adultery-Proof Required. parties were not husband and wife." The indictment must show that the same thing, as the presumption in favor of innocence is that they were lawfully married.1 And adultery being criminal intercourse between a married person and one other married or unmarried, the marriage must be proved; reputation and cohabitation are not sufficient.2 §20. Adultery and Fornication-Evidence Insufficient to Convict.- In State v. Waller,3 the male defendant, W., an orphan and cripple, ten year's old, went to live at one H.'s, where the female defendant, M., resided. She took care of him, and at H.'s death both removed to another house, where there were three beds, and lived there till W. was twenty-three and M. fifty. Indicted for adultery, a witness testified he went to the house one morning at four o'clock, and saw the female in one bed, the other not disturbed, and W. up and dressed, but he did not know where W. slept that night. This was held on appeal insufficient to convict. To prove that the man and woman were in bed together was held in State v. Way, not sufficient alone to convict them of adultery. And in two other cases the evidence was held on appeal insufficient to convict.5 V. § 204. Adultery · Evidence Held Insufficient to Convict. - Merritt State.-In Merritt v. State, the prisoner was charged and convicted of adultery with one Barbara Edwards, his sister-in-law. A fine of $225 was the punishment assessed against him. Barbara Edwards, testifying for the State, said she was twenty years old, and on March 10, 1880, gave birth to a child of which the defendant was the father. During the months of April, May and June, 1879, he had sexual connection with her four times; twice in the last named month, and once in each of the others. On each occasion the connection took place in the night-time and at the house of witness' mother, and on a pallet in a room in which the witness' mother and also the defendant's wife were sleeping. A little brother of witness, seven or eight years old, slept with her on the pallet. Defendant had not had connection with her since June, 1879. On cross-examination the witness said she did not consent to the connection, and that the defendant had carnal knowledge of her "by what you would call force." He put his hand on her mouth and held her. She did not cry out, because she could not. One day in the summer of 1879, when corn was about waist high, she hoed corn for Mr. Frost; they were alone in the field, and no one else was near. She stayed and sept for about two weeks at Mr. Sadbury's when his wife was sick. The only other witness in the case was Mrs. Victoria Dunn, formerly Edwards, who, testifying for the State, said that the witness Barbara was her youngest daughter. The defendant has been a married man for five or six years, his wife being the oldest daughter of witness. Witness was present at the marriage of her daughter to the defendant. During the year 1879 the defendant and his wife lived about half a mile from the house of witness, with whom her daughter Barbara was living. On March 10, 1880, Barbara gave birth to a child. Witness knew nothing of her daughter's pregnancy until the preceding January. After she learned of it she saw the defendant, told him of 1 Territory v. Whitcomb, ante, p. 29. Miner v. People, 58 Ill. 59 (1871). 280 N. C. 401 (1879). 46 Vt. 311 (1834). 2 DEFENCES. 7 State v. Crowley, 13 Ala. 172 (1848); Merritt v. State, 12 Tex. (App.) 203 (1882). 612 Tex. (App.) 202 (1882). |