his explanation is reasonable and probable, he should be acquitted."1

63

$379. Articles stolen from the premises as evidence.-The nonproduction in evidence of articles alleged to have been stolen, is not ground for a new trial when the accused does not expressly demand their production and their identity is not disputed."2 But articles found in defendant's possession and taken from him by force, which are alleged to have been taken by the burglar, may if identified by the owner, or by some other witness, and, it seems, where the evidence of identity is contradictory, be inspected by the jury. A witness may testify that merchandise purchased by him from the accused was of the same character as a sample shown him in court on making an examination and comparison. The jury may compare articles of wearing apparel worn by the defendant when arrested with clothing belonging to

61

66

65

See cases in note 57, also, Gather v. State (Tex. Cr., 1904), 81 S. W. 717; Lovelace v. State, 45 Tex. Cr. 261, 76 S. W. 756; Hays v. State, 30 Tex. App. 472, 17 S. W. 1063; Morgan v. State, 25 Tex. App. 513, 8 S. W. 487; Field v. State, 24 Tex. App. 422, 6 S. W. 200; Jackson v. State, 28 Tex. App. 143, 12 S. W. 701; State v. Owsley, III Mo. 450, 20 S. W. 194; Payne v. State, 21 Tex. App. 184, 17 S. W. 463; ante, § 378, et seq. Possession of stolen goods, though unexplained and exclusive, has no weight as evidence if not recent or proved after the offense. Whether possession is recent depends on the circumstances of each case and is usually for the jury, though, in exceptional cases, the evidence may so preponderate that the court may decide. White v. State, 72 Ala. 195. Where a party charged with breaking and entering a building with intent to steal is found in possession

64

of goods recently stolen gives a reasonable and credible account of how he came into such possession, or an account which will raise a reasonable doubt, the state must prove that such account is untrue; otherwise he should be acquitted; but, if the account, though reasonable, is not credible, the jury have a right to convict, though the state puts in no proof directly to prove the falsity of the account given. Collier v. State, 55 Fla. 7, 45 So. 752.

Johnson v. Commonwealth (Ky.), 15 S. W. 671, 12 Ky. L. 873.

63 Walker v. State, 97 Ala. 85, 12 So. 83; Barnett v. State, 50 Tex. Cr. 538, 99 S. W. 556.

Jackson v. State, 28 Tex. App. 370, 13 S. W. 451, 19 Am. St. 839; State v. Groning, 33 Kan. 18, 21, 5 Pac. 446.

05 See ante, $ 47.

Stevens v. State (Tex. Cr., 1906), 95 S. W. 505.

an inmate of the building which was entered, where a striking similarity in style and numbers renders them relevant."7

A failure to prove any particular value for the goods may be cured by their production in court and their examination by the jury, who may take judicial notice thereby of the value of the goods. 68

Property brought from the building entered at the time of the trial is admissible to identify similar property found in the defendant's house."9

67 Woodruff v. State (Tex., 1891), 20 S. W. 573.

es State v. Peach, 70 Vt. 283, 40 Atl. 732.

69

People v. Van Dam, 107 Mich. 425, 65 N. W. 277.

CHAPTER XXVII.

SEXUAL CRIMES.

$380. Adultery and fornication-De- $395. Incest defined.

$380. Adultery and fornication-Defined and distinguished.Fornication is sexual intercourse between a man, married or single, and an unmarried woman.1 Adultery is sexual intercourse

1State v. Chandler, 96 Ind. 591, 593; State v. Hasty, 121 Iowa 507, 96 N. W. 1115.

between a married person and one of the opposite sex, whether married or single."

§ 381. Evidence to prove the intercourse-Acts of adultery other than that charged.-Direct evidence of the act of sexual intercourse can seldom be obtained. Proof of opportunity and inclination will support a conviction of adultery. But opportunity means more than mere chance and, as evidence of inclination there must be circumstances reasonably suggestive of an adulterous tendency of each of the parties to the other. Hence, evidence of all the circumstances of the parties, their relations to one another, their domestic and social surroundings, their acquaintance, conduct and familiarity, the facts that they went out together and visited each cther, and often expressed a desire to be together are relevant.* Improper familiarities and adulterous acts between the same parties prior, or subsequent to, the act charged, but not too re

2 Miner v. People, 58 Ill. 59; State v. Fellows, 50 Wis. 65, 6 N. W. 239; Hood v. State, 56 Ind. 263, 271, 274, 26 Am. 21n; Helfrich v. Commonwealth, 33 Pa. St. 68, 75 Am. Dec. 579; Cook v. State, II Ga. 53, 56 Am. Dec. 410; State v. Wilson, 22 Iowa 364; State v. Donovan, 61 Iowa 278, 16 N. W. 130; State v. Clark, 54 N. H. 456; White v. State, 74 Ala. 31; State v. Taylor, 58 N. H. 331; Walker v. State, 104 Ala. 56, 16 So. 7; Banks v. State, 96 Ala. 78, 11 So. 404; State v. Anderson (Iowa, 1908), 118 N. W. 772. As to mistake of fact under which a man marries and cohabits with a woman married to another, see State v. Andette, 81 Vt. 400, 70 Atl. 833.

3 Till v. State, 132 Wis. 242, III N. W. 1109; State v. Thompson, 134 Iowa 25, 111 N. W. 328. See also, Elliott Evidence, §§ 2790, 2791, 2792, 2793, 2794. Proof not limited as to time and place, see Elliott Evidence, § 2796; relation as to single act, $ 2797. Proof of corpus delicti in adultery, see 68 L. R. A. 44, note.

6

Evidence of other crimes in prosecution for criminal offenses, see 62 L. R. A. 193, note; 105 Am. St. 1003, note. Evidence of character of husband or wife, see 14 L. R. A. (N. S.) 749, note.

State v. Brecht, 41 Minn. 50, 55. 42 N. W. 602; People v. Girdler, 65 Mich. 68, 31 N. W. 624; Starke v. State, 97 Ga. 193, 23 S. E. 832; State v. Ean, 90 Iowa 534, 58 N. W. 898; State v. Brink, 68 Vt. 659, 35 Atl. 492; Coons v. State, 49 Tex. Cr. 256, 91 S. W. 1085; Palmer v. State (Ala., 1909), 51 So. 358; State v. Baker (Iowa, 1910), 125 N. W. 659.

"Cross v. State, 78 Ala. 430, 433; People v. Jenness, 5 Mich. 305, 322, 324; Brevaldo v. State, 21 Fla. 789: State v. Cannon, 72 N. J. L. 46, 60 Atl. 177; Nobles v. State, 127 Ga. 212, 56 S. E. 125; Coons v. State, 49 Tex. Cr. 256, 91 S. W. 1085; Radford v. State (Ga. App., 1910), 67 S. E. 707. See also, § 388.

State v. Stubbs, 108 N. Car. 774. 13 S. E. 90; Coons v. State, 49 Tex. Cr. 256, 91 S. W. 1085; Hill v. State,

mote, or, if remote, connected with it so as to form a part of a continuous course of conduct, may be shown for the purpose of bringing out the relations and adulterous disposition of the defendant.s

§ 382. Competency of accomplice. The party with whom the adultery was committed is always a competent witness," though, as he or she is an accomplice,1o a conviction may not be had upon his or her uncorroborated testimony," nor is her confession admissible against the accused unless connected with his.12 Her unchastity is immaterial, but evidence to show her previous bad character, as, for example, that she was a prostitute, has been re