Miles v. State , 58 Ala. 390 ( 1877 )

BEICKELL, C. J.

The indictment is framed on the supposition that the consent of a man, and a woman, to commit adultery, or fornication, is a conspiracy to commit a misdemeanor, and therefore indictable. We know of no authority for such a proposition; nor, so far as we can discover, was it ever before asserted, except in Shannon v. Commonwealth, 14 Penn. St. 226, and then it received unqualified diSa^pprO-bation. So long as tbe parties have proceeded no further than to consent and agree, tbe offense rests in mere intention, and a criminal intent must be accompanied by an act in furtherance of it, before it is tbe subject of indictment.

Tbe judgment must be reversed, and a judgment here rendered discharging tbe appellants from further prosecution.