Kitchens v. State , 10 Okla. Crim. 603 ( 1914 )

The provision of the Penal Code upon which the prosecution was founded defines the crime of adultery as follows:

"Adultery is the unlawful voluntary sexual intercourse of a married person with one of the opposite sex; and when the crime is between persons, only one of whom is married, both are guilty of adultery. Prosecution for adultery can be commenced and carried on against either of the parties to the crime only by his or her own husband or wife, as the case may be, or by the husband or wife of the other party to the crime: Provided, that any person may make complaint when persons are living together in open and notorious adultery." (Section 2431, Rev. Laws 1910.)

The main question to be reviewed is the sufficiency of the evidence. It is claimed that the trial court erred in denying defendant's motion for a directed verdict of acquittal, and in overruling the motion for a new trial, on the ground that the evidence was insufficient to support the verdict; the contention being that, as the prosecution was not commenced upon the complaint of the wife of defendant, or the husband of his codefendant, the proof must show that the defendants were "living together in open and notorious adultery;" and that the proof only shows the relation of master and servant, and as such they might properly live together without invoking public scandal. In a prosecution for adultery, positive evidence of the direct fact is not required. To require positive evidence alone would be to give immunity to practically all offenders. Usually presumptive evidence alone is attainable, and the fact of carnal intercourse is inferred from circumstances that lead to it by fair inference as a necessary conclusion; without this rule, no protection whatever could be given to marital rights.

Under the provision of the Penal Code quoted, adultery is an offense against the state, as well as against the injured husband or wife, notwithstanding the requirement that the prosecution therefor must be commenced on the complaint of the injured spouse. The requirement that "prosecution for adultery can be commenced and carried on against either of the parties to the crime only by his or her own husband or wife, as the case may be, or by the husband or wife of the other party to the crime," pertains to the procedure only. That such complaint has not been made may operate to withhold authority to prosecute or punish, but this does not affect the question of the actual guilt of the offending parties. The requirement is founded partly on principles of public policy which lie at the basis of civil society. If the parties injured choose to condone the wrong done, then no one else ought to be allowed to move in the matter.

While adultery is a "public offense," it is also a personal offense against the injured husband or wife, and they become competent witnesses to prove the offense. Heacock v. State,4 Okla. Crim. 606, 112 P. 949.

However, under the proviso of the section quoted, any person may make complaint when it is alleged that the defendants "are living together in open and notorious adultery," as such adulterous cohabitation and its notoriety necessarily tends to debase and lower the standard of public morals by dishonoring the marital relation.

It appears from the record that in addition to the undisputed facts in evidence, the defendant, a married man, and his codefendant, a married woman, lived together; that there was competent evidence showing, or tending to show, the fact of illicit cohabitation, and that adulterous intercourse had habitually taken place between the parties while they were living together. If the parties for a single day lived together in open and notorious adultery, the offense was complete.

The evidence showing the existence of the relation of master and servant between the parties was properly admitted, but that relationship did not necessarily exclude the existence of the relationship denounced by the statute. Defendant was not living or abiding with his wife at the time charged, and the relation of servant did not necessarily preclude his codefendant from becoming his mistress or concubine.

The only question to be considered is whether the right to prosecute is sustained by evidence showing, or tending to show, that defendant was living with his codefendant in a state of open and notorious adultery. The courts, when called upon to determine what constitutes the state of living together within the purview of statutes defining adultery, have defined it as the state of cohabiting.

In Copeland v. State, ante, 133 P. 258, it is said:

"Simply having occasional illicit intercourse, without a public or notorious living together, is not sufficient to constitute the offense of living in a state of open and notorious adultery. The parties must reside together publicly, in the face of society as if the conjugal relation existed between them; their illicit intercourse must be habitual."

We do not think it necessary that the parties should claim to be husband and wife. It is sufficient if they lived together and behaved themselves in each other's presence in the familiar manner of husband and wife, and that their lewd and lascivious conduct was witnessed by other persons. The law seeks not alone to prevent illicit cohabitation, and to prohibit the public scandal and disgrace incident thereto, but also to preserve and promote the institution of marriage, upon which the best interests, and indeed the existence, of society depend.

Without extending this opinion, already too long, by an analysis of the evidence, it is sufficient to say that there was competent evidence given tending to support every material allegation of the information. The jury were of opinion that such evidence was true beyond a reasonable doubt. The instructions given by the court fully and fairly presented the law of the case.

The judgment of the lower court is therefore affirmed.

ARMSTRONG, P.J., and FURMAN, J., concur.