State v. Cody

• Decision Date: 20 December 1892
• Citation: 16 S.E. 408,111 N.C. 725
• Parties: STATE v. CODY.
• Court: North Carolina Supreme Court

16 S.E. 408

111 N.C. 725

STATE v. CODY.

Supreme Court of North Carolina

December 20, 1892

Appeal from superior court, Graham county; W. A. HOKE, Judge.

Maletha Cody was tried for fornication and adultery and acquitted and the state appeals. Reversed.

Where it is found by special verdict that the defendant lived several months in illicit sexual intercourse with another woman's husband, a verdict of guilty should be entered though a form of marriage was gone through with between her and such man, in the absence of a showing by her that she was insane, idiotic, or that without fault she was ignorant that the man was married to another; since it is not incumbent on the state to prove a guilty intent in such case.

The Attorney General, for the State.

CLARK J.

In State v. Cutshall, 109 N.C. 764, 769, 14 S.E. Rep 107, it is said: "The fact is not to be lost sight of that in an indictment for fornication and adultery the state is not called on to prove a criminal intent. The case is made out when it is shown that a man and a woman, not being married to each other, habitually engaged in sexual intercourse. That this is 'lewd and lascivious' is not required to be shown, but is an inference of law from the facts proved, as with 'malice' in indictments for homicide, even though in the latter case an intent must be charged. As to this offense [fornication and adultery] no intent is required to be charged or proved." In the case quoted, as in the one now before us, the male defendant has gone through a form of marriage with the female defendant which was a nullity, because his lawful wife was living. The court go on, in Cutshall's Case, supra, to say "Either party may avoid such legal conclusion by showing that he (or she) was insane, idiotic, or ignorant of the facts. But such want of intent cannot inure to the benefit of the other party who had the intent." In the present instance it is found by the special verdict that the feme defendant was living for months in illicit sexual intercourse with another woman's husband. The state has proven all that was incumbent on it to show the defendant's guilt. She has not withdrawn herself from liability for such conduct, either by showing that she was insane, idiotic, or that without fault on her part she was ignorant that the man was married to another. The jury say that they are left in ignorance on that point. There is, therefore, nothing shown which withdraws...