State v. Ayles

• Decision Date: 31 December 1914
• Citation: State v. Ayles, 74 Or. 153, 145 P. 19 (Or. 1914)
• Parties: STATE v. AYLES.
• Court: Oregon Supreme Court

145 P. 19

74 Or. 153

STATE v. AYLES.

Supreme Court of Oregon

December 31, 1914

Department 2.

Appeal from Circuit Court, Multnomah County; George N. Davis, Judge.

James G. Ayles was convicted of adultery, and appeals.Affirmed.

Robert E. Hitch, of Portland (John Manning, of Portland on the brief), for appellant.George Mowry, of Portland (Walter H. Evans, Dist. Atty., and Robert F. Maguire, Deputy Dist. Atty., both of Portland, on the brief), for the State.

McNARY J.

Convicted of adultery and sentenced to pass a term of six months in the county jail of Multnomah county, defendant prosecutes this appeal, and assigns as grounds therefor the commission by the court of 11 distinct errors.On the 30th day of January 1913, defendant and Lydia Mulloy were jointly indicted for the crime of adultery, committed as follows:

"The said James G. Ayles and Lydia Mulloy, on the 13th day of January, A.D. 1913, in the county of Multnomah and state of Oregon, not being then and there married to each other, but the said Lydia Mulloy then and there having a husband living other than the same James G. Ayles, to wit, A C. Mulloy, had carnal knowledge together each of the body of the other, and thereby committed adultery contrary to the statutes in such cases made and provided, and against the peace and dignity of the state of Oregon."

The defendants were tried together, the jury returning a verdict of guilty as to the defendant, and not guilty as to Lydia Mulloy.

We read from section 2072, L. O. L.:

"A prosecution for the crime of adultery shall not be commenced except upon the complaint of the husband or wife, or if the crime be committed with an unmarried female under the age of twenty years upon the complaint of the wife, or of a parent or guardian of such unmarried female, and within one year from the time of committing the crime, or the time when the same shall come to the knowledge of such husband or wife or parent or guardian.When the crime of adultery is committed between a married woman and an unmarried man, the man shall be deemed guilty of adultery also, and be punished accordingly."

Returning to the indictment, it will be observed that no mention is made that the action was initiated by the husband of Lydia Mulloy.The introductory part of the indictment merely recites that:

"James Ayles and Lydia Mulloy are accused by the grand jury of the county of Multnomah and state of Oregon by this indictment of the crime of adultery."

Notwithstanding the statutory command that the prosecution shall be commenced only upon the complaint of the injured spouse, the cases hold that it is not necessary to allege such facts; for evidence thereof may be introduced without the averment.State v. Athey,133 Iowa, 382, 108 N.W. 224;State v. Andrews,95 Iowa, 451, 64 N.W. 404;State v. Maas,83 Iowa, 469, 49 N.W. 1037;People v. Isham,109 Mich. 72, 67 N.W. 819;State v. Brecht,41 Minn. 50, 42 N.W. 602;1 Cyc. 956.

It is claimed by defendant that the trial court committed a legal mistake in advising the jury that, "if one of the parties to the illicit intercourse is guilty, then both are guilty of adultery."Some courts advance the doctrine that, after the acquittal of one of the defendants in a joint charge of adultery, there can be no conviction of the other.This is not in accord with the better authority, and the proper rule appears to be that the acquittal of one of the defendants is no bar to the prosecution and conviction of the other defendant.While it is true that, to constitute adultery, there must be a joint physical act, it is not necessary that there should be a joint criminal intent.One party may be guilty and the other innocent, though the joint physical act necessary to constitute adultery is complete.State v. Eggleston,45 Or. 346, 77 P. 738;State v. Cutshall,109 N.C. 764, 14 S.E. 107, 26 Am. St. Rep. 599;Commonwealth v. Bakeman,131 Mass. 577, 41 Am. Rep. 248;1 R. C. L. 644.Unquestionably, the trial court missed the law when he told the jury that, "if one of the defendants is guilty, then both are guilty."However, we fail to discern where this instruction injuriously affected the defendant, because it is a more favorable statement than the law sanctions or than defendant might expect.In a case where the court erroneously instructs the jury to the advantage of defendant, and the jury acts in accordance with the law and in disregard of the instructions, the defendant cannot be heard to say that he has been injured.

Defendant's strongest contention is that the court erred in refusing to admit evidence tending to show that the husband of Lydia Mulloy connived with and abetted defendant in the commission of the act of adultery.Defendant invokes the benefit of the same theory in the following requested instruction:

"I instruct you that, if you find from the evidence that the prosecuting witness, A. C. Mulloy, the husband of Lydia L. Mulloy, one of the defendants herein, acquiesced in or assented to the act or acts of sexual intercourse between the defendants, Lydia L. Mulloy and James G. Ayles, if you find any act or acts of sexual intercourse between said defendants did occur, then you should find the defendantJames G. Ayles not guilty."

An outline of the testimony proffered by defendant is: That the defendantLydia Mulloy, when a girl under 17 years of age, was seduced by A. C. Mulloy, who subsequently married her in order to cover the infamy of the crime; that since the time of their marriage the husband has been seeking to invent grounds for a separation and divorce; that he insisted upon his wife remaining alone in the house with defendant while he(Mulloy) absented himself therefrom; that the husband connived in every imaginable way to throw

his wife in the company of defendant by having defendant assist his wife in washing dishes and helping her about the kitchen and house; that during some festive occasion at Hillsboro Mr. Mulloy entered a saloon, and, in the presence of several witnesses, stated that he had left defendant to bring his wife in from the farm, and that he"hoped to God he would run off with her"; that defendant was solicited by Mr. Mulloy "to have intercourse with his wife by inference and innuendos"; that Mulloy stated in the presence of defendant, and to him directly, that he didn't care if he caught somebody having connection with his wife, because he wanted to get a divorce from her; that the husband knew his wife and defendant were going to Portland; and that defendant had assurance that he would not be harmed.

With much pressure it is argued that, if these things were true, defendant could not be convicted of the offense, for the reason that he was induced to commit the act.The books abound with much learning upon this interesting department of the criminal law.Nevertheless our steps have not been guided by the light of adjudged cases involving the crime of adultery.Still we feel no reason for hesitating to announce the rule that seems to us best adapted to the promotion of justice.In the case of State v. Hull,33 Or. 57, 54 P. 161, 72 Am. St. Rep. 694, this court, speaking through Mr. Justice R. S. Bean, said:

"It is difficult to see how a man may solicit another to commit a crime upon his property, and, when the act to which he was invited has been done, be heard to say that he did not consent to it."

This was a case of larceny where the property charged to have been stolen was taken, not only by the consent and passive acquiescence of the owner, but by his express direction, and upon the advice and with the active co-operation and assistance of his agents; and this court held, in effect that...