¶1This was a conviction for adultery. The indictment, charges that Dave Graham and Sally Graham did live together and have-carnal intercourse with each other, the said Sally being a married woman. The second count being “ that the said Dave Graham and Sally Graham,, both being unmarried, did live together and have carnal intercourse with each other.”
¶2It appears that Dave Graham was the first cousin of John Graham,, who was the husband of Sally Graham, the appellant. John Graham died some time in March, 1888. Before his death Dave had been living with him—John being sick several weeks before he died. On the 4th of July, 1888, six days before this case was called for trial, Sally and Dave married.
¶3Adultery is charged between these parties, Dave and Sally, on the 1st. of February, 1888, before the death of John Graham. Fornication between the parties is alleged on the same day, but the proof is confined to-acts of the parties subsequent to John’s death.
¶4Hpon the trial, over objection, the State proved by Hudson that John. *11Graham, the former husband of Sally, stated to Hudson, in the presence of the defendant and Dave Graham, that he (John) desired him (Hudson) to remain with him and give him his medicine; that he would take anything witness would give him; that he was afraid to trust his wife, Sally Graham, and Dave Graham; that he, witness, did not know what went on there when he was alone with them; that they aggravated him all they could.
¶5The objections are (1) that this is hearsay, (2) irrelevant, (3) that as. John could not be a witness against his wife, what he said could not be used in evidence, though said in presence of the accused.
¶6This is not hearsay, but we are of opinion that the testimony is irrelevant, because it is uncertain in its character. If John Graham had reference to the lewd conduct of his wife and Dave, then the facts would be relevant as a circumstance tending strongly to corroborate the other criminative facts. But as a great many things may have been done and said by appellant and Dave calculated to destroy John's confidence in his wife, and which did not involve the virtue of his wife, John may have alluded to these. Hence there is a want of certainty—not cogency or strength—in this testimony. It is not at all certain that John had reference to acts of lewdness showing illicit intercourse or a disposition on their part to have such intercourse.
¶7The Assistant Attorney-General urges that conceding for the argument that this matter was incompetent, it is without injury. Appellant was. convicted of adultery, the lowest fine being imposed. In addition to the most convincing circumstances showing guilt a witness swears positively to the fact, and no honest jury under such proof could do otherwise than convict.
¶8The third objection to this evidence is not well taken. Let it be conceded that if John were living he could not be a witness against the appellant, still if appellant had confessed her guilt to him in the presence, of another, while John could not swear to this the other person could.
¶9Objection is urged to the charge because in defining adultery the court embraces habitual intercourse. This, however, is cured when the law is. directly applied to the case.
¶10We find no error requiring a reversal, and the judgment is affirmed.
¶11Affirmed.
¶12Judges all present and concurring.