majority"> Davis, J.,

(after stating the case). There was no error in the charge of his Honor as given, and none in refusing to charge as requested. It is difficult to conceive of a more wicked, unblushing violation of the law against fornication and adultery.

The evidence shows that the defendants were not married to each other, and that, beyond all doubt and with no attempt at concealment, they habitually associated, bedded and cohabited together, and this makes the defendant guilty of the offence charged.

If, at times, when the female defendant, from a sense of shame or any other reason, was not in a yielding or complying mood, he used violence and forced her, against her will, to yield to his brutal lusts, he may have been guilty of the more heinous crime of rape — he is none the less guilty of fornication and adultery in bedding and cohabiting with her in the manner testified to by the witnesses. The mistake that he commits is in supposing that he may not have been guilty of fornication and adultery in the habitual illicit intercourse to which she freely and vol-untarity assented, and at other times of rape, if by violence he forced her to yield to his will. Of the former the proof of his guilt seems conclusive, and' he cannot evade the effect of this indictment by admitting, as he seems to do, that the evidence shows that he is guilty of the latter; he maybe guilty of both offences, but in this indictment he and his *705 co-defendant can only be convicted and punished for the former.

Before judgment a number of witnesses of high character testified that the defendant was a man of bad character, his moral character being especially bad. It was competent for his Honor to hear such evidence as he might deem necessary and proper to aid his judgment and discretion in determining the punishment to be imposed.

Tli ere is no error.

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