Conviction for adultery; fine $1000. Some of the acts of carnal knowledge occurring while defendant was a married man, and some after he had been divorced, a question arose as to whether he was guilty of habitual intercourse while married or after the divorce. The court below instructed on adultery and fornication. Appellant assigns this for error. The question: If under an indictment for adultery, *Page 580 the carnal intercourse is established by proof of one act and that the parties lived together, or by proof of habitual intercourse, whether they lived together or not, the State should fail to prove the marriage as alleged, could the accused be legally convicted of fornication? We must answer this question in the affirmative. Why? Because every element of fornication is charged. This the test. But it does not follow that the accused upon a charge of fornication can be convicted of adultery. Why? The marriage is not alleged, and the punishment for adultery is greater; and where the punishment is greater or increased because of a certain fact, that fact must be alleged; and being alleged, the State must prove it. It would be an issue in the case, and the accused would have the right to be heard on such an issue, to contest by evidence the truth of the fact upon which his punishment is to be increased. Appellant being convicted on the charge of adultery, if error, the charge on fornication was harmless.
Does the evidence sustain the charge of adultery by habitual intercourse? We are of opinion that it does. Mary, the accomplice, is very strongly corroborated by the testimony of her mother. The venue is sufficiently shown.
The judgment is affirmed.
Affirmed.
Judges all present and concurring.