¶1dissenting.
¶2I am unable to concur in reversing the judgment herein. Where, as in this case, there is a continuation of the relation of intimacy and illicit intercourse between the parties to the offense, evidence of improper familiarity and adulterous acts both before and after the act charged is admissible. Such evidence in received to prove the adulterous disposition in the parties implicated. This appears to be the rule sanctioned by the weight of recent authority. “At the time of the present writing,” says Mr. Bishop in his commentaries on Statutory Crimés, Sec. 682, this doctrine — namely, that subsequent familiarities and adulteries between the same parties, equally with the prior, ones, are admissible — may be deemed to be established in all our courts, as respects alike the divorce suit and the indictment. ”
¶3So, in Whart. Crim. Ev., Sec. 35, it is said: “In prosecutions for adultery, or for illicit intercourse of any class, evidence is admissible of sexual acts between the same parties prior to, or, when indicating continudusness of illicit relations, even subsequent to, the act specifically under trial. ”
¶4Likewise, in Underhill Crim. Ev. Sec. 381, the author says: ‘c Improper familiarities and adulterous acts between *41the same parties prior, or subsequent to, the act charged, but not too remote, or, if remote, connected with it so as to form a part of a continuous course of conduct, may be shown for the purpose of bringing out the relations and adulterous disposition of the defendant.”
¶5In State v. Witham, 72 Me. 531, Mr. Justice Peters, speaking for the court said: “It is objected that this mode of trial involved the admission of evidence of acts of adultery happening both before and after the principal act complained of. Formerly, the criticism might have been regarded favorably in many courts. Laterally, however, courts and text-writers are rapidly falling in with the view, that acts prior and also subsequent to the act charged in the indictment, when indicating a continuousness of illicit intercourse, are admissible in evidence as showing the relation and mutual disposition of the parties; the reception of such evidence to be largely controlled by the judge who tries the case, and the evidence to be submitted to the jury with proper explanation of its purpose and effect. We think this doctrine is most in, accordance with the logic of the law, and with the authorities.”
¶6So, in People v. Hendricksen, 53 Mich. 525, Mr. Justice Sherwood, with whom the other justices, among them Mr. Judge Cooley, concurred, said: “On the trial the prosecuting attorney was permitted to make proof of acts of familiarity and intimacy between the defendant and Mrs. Smith, which occurred over two years before the prosecution was commenced. Such acts, within a reasonable time before the acts complained of, and also occurring very soon thereafter, so long as they may be regarded as continuous, are competent and admissible testimony; but those occurring two years before the criminal act charged must be held too remote and it is error to admit them.”
¶7In Thayer v. Thayer, 101 Mass. 111, Mr. Justice Colt, *42speaking for the court, said: “An adulterous disposition existing in two persons towards each other is commonly of gradual development; it must have some duration, and does not suddenly subside. When once shown to exist, a strong inference arises that it has had and, will have continuance, the duration and extent of which may be usually measured by the power which it exercises over the conduct of the parties. It is this character of permanency which justifies the inference of its existence, at any particular point of time, from facts illustrating the preceding or subsequent relations of the parties. The rule is, that a condition once proved is presumed to have been produced by causes operating in the usual way, and to have continuance till the contrary be shown. The limit practically, to the evidence under consideration is that it must be sufficiently significant in character, and sufficiently near in point of time, to have a tendency to lead the guarded discretion of a reasonable and just man to a belief in the existence of this important element in the fact to be proved.' If too remote or insignificant, it will be rejected, in the discretion of the judge who tries the case. The fact that the conduct relied on has occurred since the filing of the libel does not exclude it; and proof of the continuance of the same questionable relations during the intervening time, as in the case at bar, will add to its weight.” 1 Am. & Eng. Ency. of Law (2d ed.), 754; Whart. Crim. Ev. (8th ed.), Sec. 35; Whart. Crim. Law (8th ed.), Sec. 1733; Bishop Stat. Crimes, Sec. 682; 2 Bishop Mar., Div. and Sep., Sec. 1374; Underhill Crim. Ev. 381; Thayer v. Thayer, 101 Mass. 111; State v. Bridgman, 49 Vt. 202; State v. Williams, 76 Me. 480; People v. Hendricksen, 53 Mich. 525; Burnett v. State, 32 Texas, Cr. Rep. 86; The State v. Way, 5 Neb. 283; Commonwealth v. Nichols, 114 Mass. 285; Callison v. State, 39 *43S. W. R. 300; Hamilton v. State, 36 Texas Cr. Rep. 373; State v. Stubbs, 108 N. C. 774; Beers v. Jackman, 103 Mass. 192; Baker v. United States, 1 Pinney, 641; Cole v. State, 6 Baxt. 239; Alsabrooks v. The State, 52 Ala. 24; Pond v. Pond, 132 Mass. 219, 223; Commonwealth v. Abbott, 130 Mass. 472, 474; The State v. Markins, 95 Ind. 464.
¶8I am of the opinion that the judgment should be affirmed.