State v. Fellows

• Decision Date: 23 June 1880
• Citation: 6 N.W. 239,50 Wis. 65
• Parties: THE STATE v. FELLOWS
• Court: Wisconsin Supreme Court

6 N.W. 239

50 Wis. 65

THE STATE v. FELLOWS

Supreme Court of Wisconsin

June 23, 1880

Argued June 2, 1880

REPORTED from the Circuit Court for Walworth County.

The case is stated in the opinion.

The cause was submitted on the brief of Winans & McElroy for the defendant. They cited R. S., secs. 4576, 4580-81; Terr Stats. 1839, p. 365, §§ 1, 5; State v Armstrong, 4 Minn., 335; State v. Lash, 1 Harr. (N J.), 380; 4 Am. Law Reg., O. S., 209; Hood v. The State, 56 Ind., 263; State v. Way, 6 Vt., 311; State v. Cooper, 16 id., 551; State v. Wallace, 9 N. H., 518; Lewis's U. S. Cr. Law, 43.

The Attorney General, for the state.

OPINION

ORSAMUS COLE, J.

An information was filed charging that the defendant committed the crime of adultery with one C. L. H., then an unmarried female, by having carnal intercourse with the said C. L. H., the said defendant being a married man and having a lawful wife alive. The defendant pleaded guilty to the information. The circuit court, with the consent of the defendant, has reported the case to this court, by virtue of section 4721 of the revised statutes, for our decision upon the question whether the facts stated in the information constituted, under the statute, the crime of adultery. We are of the opinion that the question must be answered in the affirmative. Our statute contains the following provisions relating to this question:

"Section 4576. Any person who shall commit the crime of adultery shall be punished, by imprisonment in the state prison not more than three years, nor less than one year, or by fine not exceeding $ 1,000, nor less than $ 200; and when the crime is committed between a married woman and a man who is unmarried, both shall be deemed guilty of adultery and each shall be punished therefor.

"Section 4580. Any man who commits fornication with a single woman, each of them shall be punished by imprisonment in the county jail not more than six months, or by fine not exceeding $ 100."

It will be seen that the crime of adultery is not defined in these provisions, but only the punishment for the offense prescribed. The sections, however, taken together, do not differ essentially from the statute which was before the territorial supreme court in 1840, in the case of Hunter v. United States, 1 Pin., 91. In that case adultery was defined as being the "sin of incontinence between persons, one or both of whom are married. If both are married, it is double adultery, or adultery on the part of both. If but one of them is married, it is single adultery, and the married party alone is guilty of that offense." The legislature may reasonably be supposed to have acted with reference to this definition of adultery given by the court at so early a day, both when enacting laws for the punishment of the offense, as well as in the statute in regard to divorce. It is true, section 4576 makes the act of illicit intercourse between a married woman and an unmarried man adultery on the part of both, so far changing the doctrine in the Hunter case. But still the statute relating to divorces makes adultery in either party a ground of divorce; and, so far as we know, it has generally been supposed that the unlawful intercourse of a married man with an unmarried female afforded a good ground for dissolution of the marriage contract.

There are, undoubtedly, many authorities which hold that adultery cannot be committed with a single woman; that even where her paramour is a married man, it is only fornication. Some of these cases are referred to in the briefs of counsel. But our s...