Jackson v. State

• Decision Date: 05 January 1888
• Docket Number: 14,577
• Citation: 19 N.E. 330,116 Ind. 464
• Parties: Jackson v. The State
• Court: Indiana Supreme Court

19 N.E. 330

116 Ind. 464

Jackson v. The State

No. 14,577

Supreme Court of Indiana

January 5, 1888

From the Henry Circuit Court.

Judgment reversed.

J Brown and J. W. Morris, for appellant.

L. T Michener, Attorney General, and J. H. Gillett, for the State.

OPINION

Mitchell, J.

Jackson was indicted and found guilty under section 1991, R. S. 1881 which imposes a fine of not exceeding five hundred dollars, and imprisonment in the county jail not exceeding six months, upon any one who cohabits with another in a state of adultery or fornication.

To cohabit, in the sense of the statute, is for a man and woman to live together in the manner of husband and wife. State v. Chandler, 96 Ind. 591.

It implies a dwelling together for some period of time, and is to be understood as something different from occasional, transient interviews, for unlawful and illicit intercourse. To sustain an indictment under this section, the evidence must establish cohabitation, including one or more acts of sexual intercourse, between parties not lawfully occupying the relation of husband and wife to each other. From the very nature of the case, it will rarely happen that direct and positive evidence of acts of illicit intercourse can be obtained. Accordingly, the unlawful and lascivious commerce may be inferred from circumstances proven, which raise such a presumption of guilt, as leaves no reasonable doubt, in that regard, in the minds of the jury.

On the appellant's behalf it is insisted that the evidence fails entirely to support the verdict. It is sufficient to say that while the facts and circumstances show such a relation between the parties as might well have warranted the conclusion that the appellant was guilty of adulterous intercourse with the person named in the indictment, it is not clear from the evidence but that the illicit acts were of an occasional character, unaccompanied by any pretence of the parties living together.

Without further consideration of the evidence, however, the judgment must be reversed for reasons which follow.

During his closing address the prosecuting attorney made the following statement to the jury:

"Washington Jackson's wife is broken-hearted over his conduct in connection with this Lowe woman. I know what I am talking about. I have been to Greenfield, and heard the evidence before the grand jury, and I know what these people think about this case."

The bill of...