COLLINS v. THE STATE

COLLINS v. THE STATE. 1. A married man, who visits, and remains with his paramour; one night hi every week, for seven months,' at her residence, a half mile'from his own house, is guilty of the offence of living in adultery, within the meaning of the statute. Writ of Error to the Circuit Court of Barbour. Before the Hon. J. D. Phelan. The plaintiff in error was indicted, for living in adultery, with one Polly Williams. From the evidence it appeared, that the defendant had a wife at home. That at least one night in every week he visited the house of Polly Williams, which was a half mile from his own residence, and slept with her all night, and that this was continued for about seven months. The court charged, that if the evidence was believed, and the parties cohabited together, it was a living together in adultery. To this he excepted, and now assigns it as error. F. S. Jackson, for the plaintiff in error. The misdemeanor created by the statute of the state, (see Olay’s Dig. 431, <§> 3,) of the living together of any man and woman in adultery, is materially different from the mere of-fence of adultery or fornication, and is punished in a different way. The meeting together of parties unmarried to each other, at one or more times and places, and cohabiting, would complete the offence of fornication or adultery, as the party were or were not married persons. But to create the of-fence created by the legislature, the parties must live or dwell together — continue or reside with each other as man and wife. Attorney General, for the State. There was no error in the charge of the court. Although the statute uses the words “living in adultery,” yet the of-fence is complete if the connection existed for one day only. State v. Glaze, 9 Ala. 283. [MAJORITY — COLLIER, C. J.] COLLIER, C. J. The third section of the sixth chapter of the penal code enacts, that “ if any man and woman shall live together in adultery or fornication, each of them shall be deemed guilty of a misdemeanor, and shall, upon the first conviction, be fined,” &c. Clay’s Dig. 431. Under this enactment it has been strongly intimated, that if the adulterous connection existed but for a single day, the parties might be convicted of the offence of thus living together. The State v. Glaze, 9 Ala. Rep. 283. The statute óf Indiana employs the terms living together in open and notorious adultery; it has been held that an occasional illicit intercourse does not constitute the offence. Wright v. The State, 5 Blackf. R. 358. In North Carolina the offence is characterized by the words unlawful bedding and cohabiting together of a male and female, and it has been decided that a conviction is authorized by showing an habitual surrender of the person of the one to the sensual gratification of the other. The State v. Jolly and another, 3 Dev. & Bat. L. Rep. 110. In the case at bar, the supposed paramour of the defendant lived but a half mile from his family residence, he visited and remained with her all of one night every week, for seven months, and sometimes oftener. This we think is quite sufficient to make out a living together, within the meaning of the statute. It is not an indispensable element in the offence, that he should have abandoned his own home and taken up his abode with the adultress, or that he should have taken her to his own house, made her supreme in his affections, and excluded his wife from the c'o njugal bed. The sleeping under the same roof, and in the same bed at stated nights, must be regarded as a living together, within the language and intention of the statute. Such a course of conduct, persevered in for such a length of time, must become open and notorious, and so far as the outrage upon decency and morality is concerned, can be little less objectionable than making her the partner of his own bed and board. If the offence charged had been an occasional act of criminal intimacy, it would be punishable only in foro conscience — municipal justice could not reach it. But the evidence of guilt went far beyond this, and we have seen, sustains the verdict. The judgment of the circuit court of Barbour is consequetly affirmed.