Miner v. People of State

Decision Date31 January 1871
Citation1871 WL 7859,58 Ill. 59
PartiesISAAC MINERv.THE PEOPLE OF THE STATE OF ILLINOIS.
CourtIllinois Supreme Court

OPINION TEXT STARTS HERE

APPEAL from the Circuit Court of Bond county; the Hon. JOSEPH GILLESPIE, Judge, presiding.

Mr. S. P. MOORE, for the appellant.

Mr. WASHINGTON BUSHNELL, Attorney General, for the people.

Mr. JUSTICE THORNTON delivered the opinion of the Court:

At the April term, 1869, of the Bond County Circuit Court, appellant was indicted. There are two counts in the indictment; one that he and Eliza Jones lived together in an open state of adultery, the one having a lawful wife, and the other a lawful husband, living; and the other count is, that they lived together in an open state of fornication.

The jury found the appellant guilty, under the first count, and the court imposed a fine of twenty dollars, and rendered judgment for costs.

A new trial should have been granted in this case, for a number of reasons.

The crime of adultery can not be sustained, by proof of the familiarities shown on the trial, or a single act of illicit intercourse, or a number of acts. The language of the statute is, “an open state of adultery.” The living together must be open and notorious, as if the relation of husband and wife existed. The illicit intercourse must be habitual. Searls v. The People, 13 Ill. 597.

The evidence discloses no such relation between the parties. It barely creates a presumption of illicit intercourse.

Adultery is criminal intercourse between a married person, and one of the opposite sex, whether married or single. It is a criminal offense. To sustain it, there must be proof of actual marriage. Reputation and cohabitation are not sufficient. There must be strict proof of the fact. Harman v. Harman, 16 Ill. 85; 1 Greenleaf Ev. Sec. 49, 9 ed.

The only proof that appellant was a married man, was rumor. Neither was the evidence satisfactory that Eliza Jones was a married woman. Samuel Jones, her alleged husband, testified that they had lived together, and had six children.” No proof of marriage was offered. He might have stated, if true, that they were actually married. The evidence adduced merely afforded a presumption of marriage. This was wholly insufficient.

If Samuel Jones was the husband of Eliza, then he was an incompetent witness. She was a party indicted with appellant. It may be assumed, as an inflexible rule, that where husband or wife is a party, neither can be a witness, either for or against the other,...

To continue reading

Request your trial
22 cases
  • State v. Clawson
    • United States
    • Missouri Court of Appeals
    • March 27, 1888
    ... ... habitual. State v. Crowner, 56 Mo. 150; Wright ... v. State, 5 Black 358; Searls v. People, 13 ... Ill. 597; State v. Gartrell, 14 Ind. 280; State ... v. Marvin, 12 Iowa 499; Hinson v. State, 7 Mo ... 244; Dameron v. State, 8 Mo. 494; ... ...
  • People v. Simpson
    • United States
    • Illinois Supreme Court
    • October 5, 1977
    ...nor against him, and when offered as a witness by the defendant she was properly excluded upon the objection of the People. (Miner v. People, 58 Ill. 59; Gillespie v. People, 176 Ill. 238, 52 N.E. 250.) Inevitably the jury would take the testimony that she made the statement as evidence of ......
  • State v. Gieseke
    • United States
    • Minnesota Supreme Court
    • May 29, 1914
    ...Sullivan v. State, 32 Ark. 187; People v. Salmon, 148 Cal. 303, 83 Pac. 42, 2 L. R. A. (N. S.) 1186, 113 Am. St. Rep. 268; Miner v. People, 58 Ill. 59. [2] Before the adoption of the Penal Code, our statutes contained one section making those who committed adultery guilty of a criminal offe......
  • State v. Gieseke
    • United States
    • Minnesota Supreme Court
    • May 29, 1914
    ... ... must be of the character described in order to sustain a ... conviction. Sullivan v. State, 32 Ark. 187; ... People v. Salmon, 148 Cal. 303, 83 P. 42, 2 L.R.A ... (N.S.) 1186, 113 Am. St. 268; Miner v. People, 58 ...          Before ... the adoption of ... ...
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT