Adultery

The voluntary sexual intercourse of a married person with a person other than the offender's husband or wife.

Bishop, Mar. & D. § 415; Moore v. Com., 6 Mete. (Mass.) 243, 39 Am. Dec. 724; State v. Hutchinson, 36 Me. 261; Cook v. State, 11 Ga. 56, 56 Am. Dec. 410; Hull v. Hull, 2 Strobh. Eq. (S. C.) 174.

Unlawful voluntary sexual intercourse between two persons, one of whom at least is married, is the essence of the crime in all cases. In general, it is sufficient if either party is married; and the crime of the married party will be adultery, while that of the unmarried party will be fornication; Respublica v. Roberts, 1 Teates (Pa.) 6; id.; 2 Dall. (Pa.) 124, 1 L. Ed. 316; State v. Parham, 50 N. C. 416; Smitherman v. St..

Ala. 23; State v. Thurstin, 35 Me. 205, 58 Am. Dec. 69."3; Cum. v. Cregor, 7 Gratt (Va.) 591; Com. v. Lafferty, 6 Gratt. (Va.) 673; Banks v. State, 96 Ala. 7S, 11 South. 404; Hunter v. U. S., 1 Pinney (Wis.) 91,.".'.> Am. Dec. 277.

In Massachusetts, however, and some of the other states, by statute, if the woman be married, though the man be unmarried, he is guilty of adultery; Com. v. < 'all. 21 Pick. (Mass.) 509,::2 Am. Dec 284, and note; Com. v. Elwell, 2 Mete. 190, 39 Am. Dec. 398 (where the man was ignorant that the woman was married): Suite v. Pearce, 2 Blackf. (Ind.) 318; Wasden v. State, IS Ga. 264; State v. Wallace, 9 N. IT. 516; aud see State v. Lash, 1(! N. J. I.. 380, 32 Am. Dec.:;97: Mosser v. Mosser, 29 Ala. 313. In Connecticut and some other states, it seems that to constitute the offence of adultery it is necessary that the uoman should be marunder the statute, so that an indictment for adultery could be sustained against either party; though within the meaning of the law respecting divorces it is adultery in the man. Cohabitation with a man after marriage is not adultery, unless the woman knows of such marriage; Banks v. State, 90 Ala. 78, 11 South. 404; Vaughan v. State, 83 Ala. 55, 3 South. 530; it is not necessary to prove emission on prosecution for adultery; Com. v. Hussey, 157 Mass. 415, 32 N. E. 362. A charge of open and notorious adultery is not sustained by proof of occasional illicit intercourse; Wright v. State, 5 Blackf. (Ind.) 358, 35 Am. Dec. 126, and note; State v. Crowner, 56 Mo. 147; Brevaldo v. State, 21 Fla. 7S9; Searls v. People, 13 111. 597; nor by merely living together as man and wife without any circumstances to cause scandal or suspicion; People v. Salmon, 148 Cal. 303, 83 Pac. 42, 2 L. R. A. (N. S.) 1186, 113 Am. St. Rep. 268; Schoudel v. State, 57