¶1-There was evidence tending to sbow tbat tbe appellant and John Phillips were married to each other prior to their cohabitation. It was contended for the State that this marriage was void because John Phillips had, at the time, a living wife, one Emma Perry, from whom he had not been divorced. His alleged marriage with Emma Perry was itself a nullity, if it was contracted when Emma Perry had a living husband from whom she had not been divorced. It was competent for the appellant, in support of the validity of her marriage to John Phillips, to show that his alleged former marriage to Emma Perry was a nullity, as the latter already had another living husband. The court erred in refusing to admit proof of Emma Perry’s former marriage, and that her lawful husband was still living.
¶2It is essential to adultery that one of the parties, at least, is at the time a married person. . When both of the parties are at the time unmarried, their unlawful carnal knowledge of each other is fornication. The definition of adultery given in the general charge of the court is erroneous.— Buchanan v. State, 55 Ala. 154.
¶3If the appellant cohabited with John Phillips only after she was married to him, she was not guilty of living with him in adultery or fornication, unless she knew that lie already had a living wife. In such case, the burden is upon the State to prove that she had such knowledge. Without such knowledge she did not have a criminal intent in cohabiting with John Phillips, if she had contracted a marriage with him which would have been valid but for his former marriage. The ruling of the court on this subject was erroneous.— Vaughan v. State, 83 Ala 55. This burden is cast upon the State only when there is evidence tending to show that the cohabitation of the parties charged with adultery or fornication followed a, prima facie valid marriage between them.
¶4Reversed and remanded.