Tomlinson v. People

Mr. Justice Waterman delivered the opinion of the court. The third count of the indictment in this case, which appellant has not abstracted, is full and complete even under the strictness of the common law as to indictments. State v. Hutchinson, 36 Me. 261. It is not necessary that the offense should be proven to have been committed upon the very day alleged. Commonwealth v. Cobb, 14 Gray (Mass.), 57. It being conceded that the defendant Tomlinson was a married man, proof of his married state was unnecessary. The defendants were indicted, not for adultery, but for living in an open state of adultery; it was therefore necessary to a conviction that the evidence should show beyond a reasonable doubt that they had so lived. The defendants had a right to have clearly pointed out the distinction between adultery and the alleged offense for which they were on trial. The defendants asked that the following instruction should be given: “ The court further instructs the jury that they are to determine from all the circumstances, as brought out by the evidence, whether or not the defendants lived together in a state of adultery, and in order to find the defendants guilty they must find from the evidence that the defendants were living together in an open and notorious state of adultery and that they were cohabiting together; and if the evidence does not establish the living together and cohabiting together of the defendants in the minds of the jurors beyond a reasonable doubt, then they must find the defendants not guilty.” This was an instruction which appellants were entitled to have given. Searls v. The People, 13 Ill. 597; Miner v. The People, 58 Ill. 59. Instruction number four, given at the instance of the defendants, is not the equivalent of the above, as it requires as a condition of acquittal that the jury shall find from the evidence that the defendants did not cohabit together and have illicit intercourse between them. The law raises the presumption that the defendants did not do these things; the jury, to convict, must find that’ they did. The judgment of the Criminal Court is reversed and the cause remanded.