ceived to show the probability of the intercourse.13 In the absence of a statute requiring a prosecution to be commenced on the complaint of the husband or wife,1 this fact need not be shown,1 nor that an adulterous cohabitation continued during all the period as charged, if it existed during any portion of the period.15

§ 383. Character of evidence to prove the fact of marriage.—It must be proved that one of the parties to the adultery was married at the time." A much stricter degree of proof is required to show marriage in criminal proceedings than will suffice in a civil trial.1 Often by statute the marriage certificate is made prima facie evidence of the marriage. Such a statute does not, by implication alone, exclude other proof,19 and the introduction of the certificate must always be supplemented by some evidence from which the jury may identify the party named therein as the accused. 20

13 Commonwealth V. Gray, 129 Mass. 474, 476, 37 Am. 378; United States v. Bredemeyer, 6 Utah 143, 22 Pac. 110; State v. Eggleston, 45 Ore. 346, 77 Pac. 738; Sutton v. State, 124 Ga. 815, 53 S. E. 381.

14 State v. Stout, 71 Iowa 343, 32 N. W. 372; State v. Andrews, 95 Iowa 451, 64 N. W. 404; State v. Wesie, 17 N. Dak. 567, 118 N. W. 20; State v. Clemenson, 123 Iowa 524, 99 N. W. 139.

15 State v. Brecht, 41 Minn. 50, 42 N. W. 602; State v. Harmann, 135 Iowa 167, 112 N. W. 632.

8 2799; proof by record, § 2800; proof of marriage-prima facie case, § 2803.

19

People v. Stokes, 71 Cal. 263, 12 Pac. 71; Thomas v. State (Tex.), 26 S. W. 724; State v. Clark, 54 N. H. 456, 560.

20 State v. Brink, 68 Vt. 659, 35 Atl. 492; People v. Broughton, 49 Mich. 339, 340, 13 N. W. 621; State v. Brecht, 41 Minn. 50, 53, 42 N. W. 602; Wedgwood's Case, 8 Me. 75: People v. Isham, 109 Mich. 72, 67 N. W. 819. In a prosecution for adultery the husband or wife of the de

16 Bailey v. State, 36 Neb. 808, 55 fendant cannot testify for the state N. W. 241.

"Banks v. State, 96 Ala. 78, 11 So. 404; Tison v. State, 125 Ga. 7, 53 S. E. 809; Elliott v. State, 125 Ga. 31, 53 S. E. 809, holding that on a failure to prove marriage the verdict must he set aside. See Elliott Evidence, § 2798.

18 See post, §§ 402-405. The burden of proof of marriage is on the prosecution. Zackery v. State, 6 Ga. App. 125, 64 S. E. 281. Method of proving, see Elliott Evidence,

as to her marriage to, or cohabitation with, him or her. People v. Isham, 109 Mich. 72, 67 N. W. 819: People v. Imes, 110 Mich. 250, 68 N. W. 157; State v. Russell, 90 Iowa 569, 58 N. W. 915; State v. Vollander, 57 Minn. 225, 58 N. W. 878; Commonwealth v. Sparks, 7 Allen (Mass.) 534, 535, 536; State Welch, 26 Me. 30, 45 Am. Dec. 94: State v. Gardner, I Root (Conn.) 485; State v. Berlin, 42 Mo. 572, 577See ante, § 186.

V.

24

The certificate should show a ceremony performed by a duly authorized official. He will be presumed to have acted within the scope of his authority.21 But the certificate is not conclusive of all facts necessary to constitute a valid marriage. Thus, if it appears that one of the parties was under age, ratification must be shown.22 The certificate is not the best evidence, even when admissible by statute.23 The ceremony may be proved by the testimony of any one who was present and saw it performed.2 But it is not enough that he shall testify that he saw a ceremony performed by some one. He ought to be able to testify that all the circumstances were such as to apparently constitute a legal marriage ceremony. 25 Despite some uncertainty in the early cases, it is now well settled that the marriage of the accused may be proved by his admissions, oral or in writing. But his statement that he is married, to be admissible, must have been made voluntarily and with deliberation.26

A lawful marriage, when proved, will be presumed to continue until the contrary is shown. The fact that the marriage was void, or had been terminated by death, divorce or otherwise, is always relevant in adultery.27

State v. Marvin, 35 N. H. 22, 27, 2 Greenl. on Ev., § 461, 1 Phil. Ev., 410.

"State v. Clark, 54 N. H. 456, 560; Owens v. State, 94 Ala. 97, 10 So. 669; Commonwealth v. Littlejohn, 15 Mass. 163; Commonwealth v. Morris, I Cush. (Mass.) 391, 394; Chew v. State, 23 Tex. App. 230, 5 S. W. 373. Some of the cases hold that an eyewitness, if living, must be produced. Commonwealth v. Norcross, 9 Mass. 492, 493; Wood v. State, 48 Ga. 192, 15 Am. 664; Buchanan v. State, 55 Ala. 154; Elliott Evidence, § 2801.

157, 36 Am. Dec. 742n; State v. Libby, 44 Me. 469, 69 Am. Dec. 115: State v. Medbury, 8 R. I. 543; Commonwealth v. Holt, 121 Mass. 61; State v. Still, 68 S. Car. 37, 46 S. E. 524, 102 Am. St. 657; State v. Moore (Utah, 1909), 105 Fac. 293. A photograph of the defendant, with an indorsement in his handwriting "from your dear husband," has been received as an admission. State v. Behrman, 114 N. Car. 797, 19 S. E. 220, 25 L. R. A. 449n. See Elliott Evidence, § 2802.

Banks v. State, 96 Ala. 78, 11 So. 404. The burden to show this is upon the defendant. People V. Stokes, 71 Cal. 263, 12 Pac. 71; State v. Weatherby, 43 Mc. 258, 263, 69 Am. Dec. 59. The intermarriage of the parties to the adultery will not be presumed. If they are jointly indicted the burden of proving their

29a

§ 384. Lascivious cohabitation or living in unlawful cohabitation. -It must appear that the parties lived together openly and notoriously as though husband and wife. The crime of living in adultery must of necessity be proved by circumstantial evidence. The mere fact that the parties lived together in one house or were guilty of a single act, or even of several acts, of adultery,” is not enough.29 They must live together, if only for a short time, as for a single day,2 as though the marriage relation existed, and the evidence must be such that a continuance in adultery may be inferred.30 There need not be direct proof of even a single act of adultery. The crime is sufficiently proved by showing circumstances which will raise the presumption of an unlawful intimacy, and the continuance of sexual and adulterous intercourse.31 Thus it may be shown that the defendant and the paramour were living together in the same dwelling, that the woman cooked the meals and performed the usual household duties of a wife, that accused paid the living expenses,32 that both ate at the same table and occupied the same room, that their clothing was mingled in

intermarriage is upon them, as it is a fact peculiarly within their own knowledge. State v. McDuffie, 107 N. Car. 885, 12 S. E: 83; State v. Pope, 109 N. Car. 849, 13 S. E. 700. As it is the sexual intercourse rather than the intent or knowledge with which it is accompanied that constitutes the crime, it is not necessary to prove that the accused did or did not know that the other party was married. Fox v. State, 3 Tex. App. 329, 30 Am. 144. Invalid divorce no defense, see Elliott Evidence, § 2805. 2 State v. Cassida, 67 Kan. 171, 72 Pac. 522.

As master and servant not sufficient. Boswell v. State, 48 Tex. Cr. 47, 85 S. W. 1076, 122 Am. St. 731.

20a Alpine v. State, 117 Ala. 93, 23 So. 130 (intending to continue the relation).

30 State v. Chandler, 132 Mo. 155, 33 S. W. 797; State v. Chandler, 96 Ind. 591, 593; Wright v. State, 108 Ala. 60, 18 So. 941; State v. Miller,

42 W. Va. 215, 24 S. E. 882; Schou-
del v. State, 57 N. J. L. 209, 30 Atl.
598; State v. Cassida, 67 Kan. 171,
72 Pac. 522; Collins v. State, 46 Tex.
Cr. 550, 80 S. W.
372. See Shaw v.
State, 49 Tex. Cr. 379, 91 S. W.
1087; State v. Poyner (Wash., 1910),
107 Pac. 181. See Elliott Evidence,
$ 2795.

Brown v. State, 108 Ala. 18, 18 So. 811; Searls v. People, 13 Ill. 597; Richardson v. State, 37 Tex. 346; Pruner v. Commonwealth, 82 Va. 115, 10 Va. L. J. 520; Granberry v. State, 61 Miss. 440; State v. Chandler, 96 Ind. 591, 593; Jackson v. State, 116 Ind. 464, 465, 19 N. E. 330; People v. Gates, 46 Cal. 52; Van Dolsen v. State, Ind. App. 108, 110; Bird v. State, 27 Tex. App. 635, 11 S. W. 641, 11 Am. St. 214; Kahn v. State (Tex., 1897), 38 S. W. 989; Counts v. State, 49 Tex. Cr. 329, 94 S. W.

the wardrobe, that there was but one bed in the house, and that each spoke of the other as though the marriage relation existed between them.

§ 385. Seduction defined.-Seduction may be defined as the persuading or inducing a woman of previous chaste character to depart from the path of virtue by any species of arts, persuasions or wiles which are calculated to have and do have that effect, and which result in her ultimately submitting to the sexual embrace of the accused.33

§ 386. The sexual intercourse-Relevancy of evidence.-The sexual intercourse must be proved, and, if it is proved, the accused may be convicted of adultery, though a promise be not proved.34 Any evidence admissible to prove adultery may be received. The time the parties were together, the particular places they visited, and their opportunities to indulge in intercourse without detection are all relevant.35 The record of a conviction of bastardy secured by the prosecutrix against the defendant is not admissible on his subsequent trial for seduction. It is in no way res adjudicata as to any issue involved. But proof of the birth of a child

33

36

People v. Gibbs, 70 Mich. 425, 430, 38 N. W. 257, 260; People v. De Fore, 64 Mich. 693, 699, 31 N. W. 585, 8 Am. St. 863n. "Where consent is given, pending a virtuous engagement, in consequence of a repetition of a promise to marry already made and accepted, the woman yielding in reliance on the plighted faith of her lover, and he intending that she shall trust and be deceived, the case is one of seduction." Wilson v. State, 58 Ga. 328, 331.

in prosecution for seduction, Elliott Evidence, § 3149; circumstantial evidence in prosecution for seduction,

3153; admission, § 3150; burden of proof, 3142; question of law and fact, § 3144.

State v. Wenz, 41 Minn. 196, 197, 42 N. W. 933. It is not proper to permit the prosecution to exhibit a very young infant to the jury, as directly relevant to prove the guilt of the accused, charged with either seduction or rape, or merely to corroborate the prosecutrix, because of à supposed resemblance between the child and accused. State v. Danforth, 48 Iowa 43, 30 Am. 387. See also, Hanawalt v. State, 64 Wis. 84, 24 N. W. 489. 54 Am. 588; Risk v. State, 19 Ind. 152; Reitz v. State, 33 Ind. 187; Barnes v. State, 37 Tex. Cr. 320, 39

to the prosecutrix is some evidence and may be shown by the evidence of the prosecutrix to corroborate her testimony.37

38

§ 387. Evidence to prove the promise.-The sexual intercourse is an essential element of the seduction, and must always be proved beyond a reasonable doubt. But mere illicit sexual intercourse alone does not constitute seduction. It must appear that it was procured by some artifice, deception or promise, usually an unconditional promise of marriage, and that it was solely because of this promise that the female was induced to surrender her virtue. What evidence will justify the jury in finding that the

S. W. 684. But in State v. Horton, Pr. (N. Y.) 15; Carney v. State, 79 100 N. Car. 443, 449, 6 S. E. 238, 6 Ala. 14; Phillips v. State, 108 Ind. Am. St. 613, it was held that a child 406, 9 N. E. 345; Bowers v. State, 29 might be exhibited to the jury to Ohio St. 542, 546; Spenrath v. State prove the sexual intercourse. The (Tex. Cr., 1898), 48 S. W. 192; Walexact date of the intercourse is im- ton v. State, 71 Ark. 398, 75 S. W. material. State v. Moore, 78 Iowa 1; State v. Sortviet, 100 Minn. 12. 494, 43 N. W. 273; State v. McClin- 110 N. W. 100; Neary v. People, 115 tic, 73 Iowa 663, 665, 35 N. W. 696; Ill. App. 157; Simmons v. State, 54 State v. Deitrick, 51 Iowa 467, 472, I Tex. Cr. 619, 114 S. W. 841; State N. W.732. v. Atterbury, 59 Kan. 237, 52 Pac. State v. Nugent, 134 Iowa 237, 451; Nolan v. State, 48 Tex. Cr. 436, III N. W. 927. 88 S. W. 242; Howe v. State, 51 Tex.

38 People v. Gumaer, 4 App. Div. Cr. 174, 102 S. W. 409. The promise

(N. Y.) 412, 39 N. Y. S. 326.

30 State v. Knutson, 91 Iowa 549, 60 N. W. 129; State v. Lingle, 128 Mo. 528, 31 S. W. 20; State v. Crowell, 116 N. Car. 1052, 21 S. E. 502; Smith v. State, 107 Ala. 139, 18 So. 306; Anderson v. State, 104 Ala. 83, 16 So. 108; Powell v. State (Miss., 1896), 20 So. 4; State v. Sharp, 132 Mo. 165, 33 S. W. 795; Barnes v. State, 37 Tex. Cr. 320, 39 S. W. 684; People v. De Fore, 64 Mich. 693, 31 N. W. 585, 8 Am. St. 863n; State v. Fitzgerald, 63 Iowa 268, 270, 19 N. W. 202; State v. Hemm, 82 Iowa 609, 616, 48 N. W. 971; People v. Clark, 33 Mich. 112; State v. Heatherton, 60 Iowa 175, 14 N. W. 230; People v. Kane, 14 Abb.

of marriage must, according to the majority of the cases, be an unconditional promise, and must be made under such circumstances that the one to whom it was made migh: reasonably rely on it. Russell v. State, 77 Neb. 519, 110 N. W. 380. To establish the charge of seduction it must be made to appear that the intercourse was accomplished by some artifice. Something more than an appeal to lust or passion must be proved. State v. Fitzgerald, 63 Iowa 268, 19 N. W. 202; Powell v. State (Miss., 1896), 20 So. 4. See Elliott Evidence, § 3148. Circumstantial evidence to prove seduction, see Elliott Evidence, § 3151; presumptions in prosecution for seduction, § 3143