Names v. State , 20 Ind. App. 168 ( 1898 )

Robinson, C. J.

Appellant and one Anna Jones were indicted for adultery, and on motion for separate trials, appellant was separately tried resulting in a verdict of guilty and a fine of $200 and imprisonment in the county jail for thirty days.

It is argued that there is no allegation in the indictment, that at the time of the alleged offense, Anna Jones had a husband living. Adultery is sexual intercourse between a married woman and any man other than her husband. State v. Smith, 18 Ind. App. 179; State v. Chandler, 96 Ind. 591. Upon the point in question the indictment charges that “the said Charles N. Names being then and there, etc., * * * and the said Anna Jones being then and there a married woman and the wife of one William Jones, did then and there live,” etc.

. The language used necessarily implies that William Jones is living. A wopian cannot be a wife unless she has a husband living. If he dies or they are divorced she is no longer his wife. A wife is a woman who has a husband living. The charge is not simply that she had been married, but that she was then and there a married woman and the wife of William Jones. The indictment is good. Gillett Grim. Law, section 193; Crane v. People, 168 Ill. 395, 48 N. E. 54; section 1964, Burns’ R. S. 1894.

The only questions presented by counsel on the motion for a new trial are certain alleged errors of the court and misconduct of a juror. These do not appear in the record, except as set out in the motion for a new trial. Affidavits were filed in support of the motion for a new trial, but these have not been brought into the record by bill of exceptions. There is no bill of exceptions in the record, and nothing that purports to be a bill of exceptions. It is well settled that affidavits to sustain causes assigned for a new trial in a criminal case must be brought into the record by a bill of exceptions. Section 662, Burns’ R. S. 1894 has no application to criminal cases. Graybeal v. State, 145 Ind. 623. Judgment affirmed.