ADULTERY. The voluntary sexual inter course of a married person with a person other than the offender's husband or wife. Bishop, Mar. & D. § 415 ; Moore, v. Com., 6 Mete. (Mass.) 243, 39 Am. Dec. 724 ; State v. Hutchinson, 36 Me. 261; Cook v. State, 11 Ga. 56, 56 Am. Dec. 410 ; Hull v. Hull, 2 Strobh. Eq. (S. C.) 174.
Unlawful• voluntary sexual intercourse be tween two persons, one of whom at least is married, is the essence of the crime in all cases. In general, it is sufficient if either party is married ; and the crime of the mar ried party will be adultery, while that of the unmarried party will be fornication; Re spublica v. Roberts, 1 Yeates (Pa.) 6; id.; 2 Dall. (Pa.) 124, 1 L. Ed. 316; State v. Par ham, 50 N. C. 416 ; Smitherman v. State, 27 Ala. 23 ; State v. Thurstin, 35 Me. 205, 58 Am. Dec. 695; Com. v. Cregor, 7 Glatt. (Va.) 591; Com. v. Lafferty, 6 Graft, (Va.) 673 ; Banks v. State, 96 Ala. 78, 11 South. 404: Hunter v. U. S., 1 Pinney (Wis.) 91, 39 Am. Dec. 277. In Massachusetts, however, and some of the other states, by statute, if the woman be married, though the man be unmar ried, he is guilty of adultery ; Com. v. Call, 21 Pick. (Mass.) 509, 32 Am. Dec. 284, and note; Cora. v. Elwell, 2 Mete. 190, 39 Am. Dec. 398 (where the man was ignorant that the woman was married); State v. Pearce, 2 Blackf. (Ind.) 318; Wasden v. State, 18 Ga. 264 ; State v. Wallace, 9 N. H. 515; and see State v. Lash, 16 N. J. L. 380, 32 Am. Dec. 397 ; Mosser v. Mosser, 29 Ala. 313. In Con necticut and some other states, it seems that to constitute the offence of adultery it is necessary that the woman should be mar ried ; that if the man only is married, it is not the crime of adultery at common law or under the statute, so that an indictment for adultery could be sustained against either party ; though within the meaning of the law respecting divorces it is adultery in the man. Cohabitation with a man after mar riage is not adultery, • unless the woman knows of such marriage ; Banks v. State, 96 Ala. 78, 11 South. 404 ; Vaughan v.' State, 83 Ala. 55, 3 South. 530; it is not necessary to prove emission on prosecution for adultery ; Com. v. Hussey, 157 Mass. 415, 32 N. E. 362.
A charge of open and notorious adultery is not sustained by proof of occasional il licit intercourSe; Wright v. State, 5 Blackf. (Ind.) 358, 35 Am. Dec. 126, and note; State v. Crowne•, 56 Mo. 147 ; Brevaldo v. State, 21 Fla. 789 ; Searls v. People, 13 III. 597; nor by merely living together as man and wife without auy circumstances to cause scandal or suspicion ; People v. Salmon, 148 Cal. 303, 83 Pac. 42, 2 L R. A. (N. S'.) 1186,
113 Am. St. Rep. 268 ; Schoudel v. State, 57 N. J. L. 209, 30 All 598. While ordinarily marriage may be proved by admission or matrimonial cohabitation there is some con flict as to whether the fact of marriage can be proved by admission of a party so as to render him guilty of a crime, as of adultery. In many courts such evidence is held insuffi cient; People v. Humphrey, 7 Johns. (N. Y.) 314; State v. Roswell, 6 Conn. 446; State v. Medbury, 8 R. I. 543 ; People v. Isham, 109 Mich. 72, 67 N. W. 819 ; State v. Arm strong, 4 Minn. 335 (Gil. 251) ; but' the weight of authority is against that rule; Cameron v. State, 14 Ala. 546, 48 Am. Dec. 111, and note ; State v. Libby, 44 Me. 469, 69 'Am. Dec. 115; Com. v. Holt, 121 Mass. 61; Cook v. State, 11 Ga. 53, 56 Am. Dec. 410 ; Mur phy v. State, 50 Ga. 150; •State v. Sanders, 30 Ia. 582.
It was not, by itself, indictable at common law ; 4 Bla. Com. 65; Whart. Cr. Law 1717 ; Anderson v. Com., 5 Rand. (Va.) 627, 16 Am. Dec. 776; Com. v. Isaacs, 5 Rand. (Va.) 634 ; but was left to the ecclesiastical courts for punishment. In the United States it is usu ally punishable by fine and imprisonment under various statutes.
Parties to the crime may be jointly in dicted ; Corn. v. Elwell, 2 Mete. (Mass.) 190, 35 Am. Dec. 398 ; or one may be convicted and punished before or without the convic tion of the other ; 2 Whart. Cr. L. § 1730 ; "but when one has been previously tried and acquitted, or when both are tried together and the verdict is for one, the other cannot be found guilty ;" State v. Mainor, 28 N. C. 340; State v. Parham, 50 N. C. 416; contra; State v. Caldwell, 8 Baxt. (Tenn.) 576 ; Alon zo v. State, 15 Tex. App. 378, 49 Am. Rep. 207 ; Solomon v. State, 39 Tex. Cr. R. 140, 45 S. W. 706 ; and see 12 Harv. L. R. 282. The adultery' of the wife will not avoid a previous voluntary settlement ; Lister v. Lis ter, 35 N. J. Eq. 49; but if, in contemplation of future adultery, she induce a gift of prop erty, it is revocable; 2 De G. F. & J. 481; Evans v. Evans, 118 Ga. 890, 45 S. E. 612, 98 Am. St. Rep. 180. The equitable jurisdic tion is founded on fraud in concealing a ma terial fact which, by reason of the relation, there was a duty to disclose; 17 Harv. L. Rev. 202. Where the petitioner in divorce was only able to prove acts of familiarity, suggestive of adultery, before the date of the petition, he was permitted to prove ac tual adultery after that date as showing what inferences should be drawn from the prior conduct ; [1900] P. 63.
As to civil remedies, see CRIM. CON.