Smitherman v. State
Supreme Court of Alabama
Eroji the Circuit Court of Bibb. Tried before the Hon. Robert Dousherty. The appellant, Noah Smitherman, and one Tempe Manerd, a free mulatto woman, were indicted at the Fall term, 3,850, of the Circuit Court of Bibb, for living together in adultery; the indictment containing but a single count.
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Eroji the Circuit Court of Bibb. Tried before the Hon. Robert Dousherty. The appellant, Noah Smitherman, and one Tempe Manerd, a free mulatto woman, were indicted at the Fall term, 3,850, of the Circuit Court of Bibb, for living together in adultery; the indictment containing but a single count. The appellant being on trial-alone, the State introduced evidence showing the fact of the illicit connection existing between him and the said Tempe within the time covered by the indictment, and it was further proved that both of them were unmarried at the time. “ The court thereupon charged the…
1Opinion of the CourtChilton, C. J.
The statute has disjoined the offences of adultery and fornication, by declaring that, “ if any man and woman live together in adultery, or fornication,” &c. (Code, § 3281); and while it is true they both involve an illicit cohabitation between the sexes, yet we are of opinion, that upon an indictment for adultery, a party cannot be convicted of fornication. To constitute the crime of adultery, one of the parties, at least, must be married, as it imports a violation of the marriage bed. We must, therefore, consider this indictment as though the fact of marriage had been averred. In such ease,…
2Cases cited1 opinion
- State v. HintonSupreme Court of Alabama · 1844
3Cited by8 opinions
- Buchanan v. StateSupreme Court of Alabama · 1876
- Faulk v. StateSupreme Court of Alabama · 1875
- Mosser v. MosserSupreme Court of Alabama · 1856
- United States v. GriegoNew Mexico Supreme Court · 1902
- Davis v. StateAlabama Court of Appeals · 1930
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