put one C out of her house at night at the instance of the male defendant, and saw defendant go in soon after; C testified that after he was put out of the house, he went several nights to her house and heard them, from the outside, undress and go to bed together, and that the male defendant furnished her the house; another witness testified that he lived near the woman's house, and that defendant was in the habit of going to her house early in the night and leaving early in the morning: Held, that while the testimony, if believed as a whole, was sufficient to sustain a verdict of guilty, it was error to instruct the jury that, if they believed the evidence, defendant was guilty. Dixon, 104-704.

Evidence of acts of illicit intercourse prior to a former conviction pleaded is competent as corroborative or explanatory evidence. Wheeler, 104-893. Evidence of acts of adultery anterior to the two years preceding the indictment, is competent to be considered in connection with other evidence of like nature within the two years. Pippin, 88-646.

Evidence that prior to a former indictment and acquittal of defendants on a charge of fornication and adultery, and more than two years before the present indictment was found, "the children of the female defendant had been heard in her presence to call the male defendant papa," is competent in corroboration of other evidence of adultery. Kemp, 87-538.

Where a female defendant had given birth to several children, of whom all but one were dead, evidence that the male defendant, while caressing the living child, spoke of it as his, and on another occasion had been heard to say he believed the others were his children also, is incompetent against the woman as coming within the prohibition of the statute, and where the court fails to tell the jury that they could not consider such statements as evidence against the woman, there is error invalidating the verdict, though no exception to the evidence was taken on the trial, since no exception is necessary where the evidence is made incompetent by statute. Ballard, 79-627.

Evidence that the male defendant had a wife living and the female defendant had a husband living at the time of the commission of the offence is competent, though such facts are admitted, since they go to prove defendants are not married to each other, and if the fact is admitted the evidence is then merely cumulative. Manly, 95-661.

On the trial of a criminal action it is competent to show that defendant had attempted to bribe one of the jurors. Case, 93-545.

Where a witness testifies that he went early one morning to the house of one of the defendants, and on knocking was, after some hesitation, admitted by the female defendant, who came to the door with her dress unfastened; that the male defendant was in the only bed in the room; that the female's shoes were near the head of the bed, and that the bed seemed very much tumbled; that there were two other rooms in the house, but the doors were closed and witness could not see whether they contained a bed or not; and another witness testifies that the female defendant had lived in the house with the male defendant four of five years, and that her husband is dead, the evidence is sufficient to be submitted to the jury. Poteet, 30 (8 Ired.), 23.

The husband of a woman who has pleaded guilty to an indictment for fornication and adultery, is a competent witness for the state on the trial of the other defendant. Guest, 100-410.

Evidence of acts of adultery committed more than two years prior to the finding of the bill, is competent in explanation of other acts of like nature committed within that period. Guest, 100-410.

Evidence of acts of adultery committed outside the county in which the trial takes place, is competent in explanation of acts committed in the county. Guest, 100-410.

ONE MAY BE ACQUITTED AND THE OTHER CONVICTED.-Where one defendant is tried and acquitted for want of proof, the other may be afterwards tried and convicted, since there can be no estoppel as to the state in favor of a party not on trial, as there is none against him when put on trial for this offence after conviction of the other party. Overruling State v. Mainor, 28-340. Cutshall, 109-764.

Where, on a trial for fornication and adultery, the male defendant is found guilty and the female not guilty, no judgment can be pronounced against the male defendant, since the crime charged cannot be committed but by both of them, and upon a verdict of not guilty as to one it appears cumulatively that the other cannot be guilty. Overruled in State v. Cutshall, 109-764. Mainor, 28 (6 Ired.), 340.

HUSBAND AND WIFE AS WITNESSES.-The divorced husband of the female defendant is incompetent to testify against the defendants as to adulterous intercourse which occurred between defendants while the marriage subsisted. Jolly, 20 (3 D. & B.), 110.

The husband of the female defendant who has obtained a divorce a vinculo matrimonii from her after the finding of the bill, but before trial, is not a competent witness against her as to the adulterous intercourse which took place while the marriage subsisted. Following State v. Jolly, (3 D. & B.), 110; Jones, 89-559.

The husband of the feme defendant is a competent witness against her to prove her marriage to him. The Code, sec. 588, makes the husband or wife incompetent "except to prove the fact of marriage." McDuffie, 107-885.

MARRIAGE WHILE FIRST WIFE LIVING.-A man who, during the life-time of his first wife, goes through the ceremony of marriage with another woman, and lives with her for years as man and wife, may be convicted of fornication and adultery notwithstanding his co-defendant may be acquitted by showing that she was without fault, ignorant of the facts, since there may be an unlawful sexual intercourse where one party has a guilty intent, and the other, through ignorance of the facts, has no such intent. Merrimon, C. J., dissenting. Cutshall, 109-764.

BURDEN OF PROOF AS TO MARRIAGE.-It is not necessary for the state to prove that defendants are not married, since the question whether they are married or not is a matter peculiarly within their knowledge, and the burden is on them to show a marriage if such exists. McDuffie, 107-885.

MARRIAGE BETWEEN WHITE AND COLORED PERSONS.-Where a white woman leaves this state for the purpose of evading its laws in consummating a marriage with a negro, but with no intent to return, and the marriage take place in a state whose laws permit such marriage, the negro being a resident of that state, the marriage is valid in this state, and defendants cannot be convicted of fornication and adultery, though they afterwards come to this state to reside. Reade and Bynum, J. J., dissenting. Ross, 76-242.

A marriage solemnized in a state whose laws permit such marriages, between a negro and a white person domiciled in this state and who leave it for the purpose of evading its laws and with intent to return, is not valid in this state. Kennedy, 76-251.

TRIAL OF ONE WITHOUT THE OTHER.-A trial may be had as to one of the defendants, though the other has not been taken. Lyerly, 52 (7 Jones), 158. The solicitor may enter a nol pros. as to one of the defendants and use that one as a witness to prove the offence against the other. Phipps, 76-203. JUDGMENT PASSED AGAINST ONE AND NEW TRIAL GRANTED THE OTHER.— Where, after conviction of both defendants on the confession of the male defendant, the female is granted a new trial because the confessions were received against her, the court may still pass judgment upon the male defendant. Parham, 50 (5 Jones), 416.

PUNISHMENT.-Persons convicted of fornication and adultery may be imprisoned in the county jail. Manly, 95-661.

The court during the term may reduce the term of imprisonment. Ib. INTERCOURSE PROCURED PARTLY BY VIOLENCE.-Where the evidence establishes the fact that defendants habitually cohabited together, the fact that the female defendant sometimes yielded through fear of violence, is not sufficient to entitle them to an acquittal of the offence as charged, since, while the male defendant may be guilty of the more heinous offence of rape, they both may still be guilty of fornication and adultery. Summers, 98-702.

CHARGE.—It is not error to refuse to charge that if the jury were not satisfied of the guilt of defendants from the evidence of witnesses who testified that they saw defendants in actual sexual intercourse, they should acquit when there is other evidence of the male defendant stealthily visiting the female defendant's house at night, of his being in the room alone with her and the lights extinguished, and of other circumstances of a suspicious nature. Austin, 108-780.

SPECIAL VERDICT--MARRIAGE.-Where a special verdict is returned, finding that the defendant was married to one G, who had living at that time another wife, but that the jury did not know whether she knew of this fact or not, a verdict of guilty should be entered, since it was incumbent on the defendant to show that she did not know of it. Cody, 111-725.

ACTS IN ANOTHER COUNTY.—Defendants cannot be convicted for acts committed in another county. Beard, 124–811.

THE INTENT INFERRED.-The state is not required to prove criminal intent; this is inferred from the facts proved of habitual sexual intercourse between persons unmarried, and any extenuating circumstances must be shown by the defendant. Cody, 111-725.

FUGITIVES.

. See also EXTRADITION.

Sec. 178 (1165). Fugitives from justice; who may arrest. 1868-'9, c. 178, sub chap. 3, s. 33. 1895, c, 103.

Any justice of the supreme court, or any judge of the superior court or of any criminal court, or any justice of the peace, or mayor of any city, or chief magistrate of any incorporated town, on satisfactory information laid before him that any fugitive or other person in the state has committed, out of the state and within the United States, any offence which, by law of the state in which the offence was committed, is punishable either capitally or by imprisonment for one year or upwards in any state prison, shall have full power and authority, and is hereby required to issue a warrant for said fugitive or other person and commit him to any jail within the state for the space of six months, unless sooner demanded by the public authorities of the state wherein the offence may have been committed, pursuant to the act of congress in

that case made and provided: if no demand be made within that time the said fugitive or other person shall be liberated, unless sufficient cause be shown to the contrary.

No one has authority, without process legally issued in this state, to arrest a person charged with crime in another state and fleeing here for refuge. Such arrest makes the parties engaged in it guilty of assault and battery. Shelton, 79-605. Upon a fugitive's surrendering to the state demanding his return in pursuance of national law, he may be tried in the state to which he is returned for any other offence than that specified in the requisition for his rendition, and in so trying him against his objection, no right, privilege or immunity secured to him by the constitution and laws of the United States is thereby denied. Glover, 112-896.

It is competent for the legislature in the exercise of its reserved sovereign powers, and as an act of courtesy to a sister state, to provide by stat ute for the surrender, upon requisition, of persons indictable for murder in such state, although they have never "fled from justice." Hall, 115-811. Where one has been constructively present in a state by being deemed, by a legal fiction, to have followed an agency or instrumentality put in motion by him to accomplish a criminal purpose, he is not a fugitive from justice of such state so as to warrant the executive of this state to deliver him to the authorities of such state upon the requisition of the governor of the demanding state. Hall, 115-811.

A fugitive from justice is one who, having committed a crime in one jurisdiction, flees therefrom in order to evade the law and escapes punishment. Hall, 115-811.

No one can, in any sense, be alleged to have fled from the justice of a state in the domain of whose territorial jurisdiction he has never been corporally present since the commission of the crime. Hall, 115-811.

The distinction between the rights of a fugitive from justice under international and interstate extradition laws defined. Glover, 112-896.

Except in the case of a fugitive surrendered by a foreign government under treaty stipulations, when a person is within the jurisdiction of a court and there properly charged with crime, the court may hold and try him, no matter how he was brought within such jurisdiction. Glover, 112-896.

A prisoner arrested and held under the provisions of section 1165 of The Code cannot be lawfully detained, unless it be made to appear that he is liable to extradition under the act of congress, passed in pursuance of clause 2, section 2 of article 4 of the constitution of the United States Hall, 115-811.

Sec. 179 (1166).

Magistrates to keep record of the proceedings and transmit

copy to the governor. 1868-'9, c. 178, sub chap. 3, s. 35.

Every magistrate committing any person under the preceding section, shall keep a record of the whole proceedings before him, and immediately transmit a copy thereof to the governor for such action as he may deem fit therein under the law.

Sec. 180 (1167). Duty of the governor. 1868-'9, c. 178, sub chap. 3, S. 36. The governor shall immediately inform the governor of the state or territory in which the crime is alleged to have been com

mitted, or the president of the United States, if it be alleged to have been committed within the District of Columbia, of the proceedings had in such case.

Sec. 181 (1168). Every sheriff or jailer shall surrender the fugitive upon the order of the governor. 1868-'9, c. 178, sub chap. 3, s. 37.

Every sheriff or jailer, in whose custody any person so committed shall be, upon the order of the governor, shall surrender him to the person named in such order.

Sec. 182 (1169). Governor may employ agent or offer reward for the apprehension of fugitives charged with felony. R. C., c. 35, s. 4. 1880, c. 561. 1886, c. 28. 1868.99, c. 52. 1870-'1, c. 15. 1871-'2, c. 29. 1891, c. 421.

The governor, on information made to him of any person, whether the name of such person be known or unknown, having committed a felony or other infamous crime within the state, and having fled out of the jurisdiction thereof, or who conceals himself within the state to avoid arrest, or who having been convicted has escaped and cannot otherwise be apprehended, may either employ a special agent, with sufficient escort, to pursue and apprehend such fugitive, or issue his proclamation, and therein offer a reward, not exceeding four hundred dollars, according to the nature of the case, as in his opinion may be sufficient for the purpose, to be paid to him who shall apprehend and deliver the fugitive to such person and at such place as in the proclamation shall be directed; and he may from time to time issue his warrants on the state treasurer for sufficient sums of money for such

purpose.

FUTURES.

Sec. 183. Futures, and other vicious contracts, indictable. 1889, c. 221.

Every contract, whether in writing or not, whereby any person or persons, corporation or corporations shall agree to sell and deliver any cotton, Indian corn, wheat, rye, oats, tobacco, meal, lard bacon, salt, pork, salt fish, beef cattle, sugar, coffee, stocks, bonds, and choses in action, at a place or places and at a time or times specified and agreed upon therein, to any other person or persons, corporation or corporations, whether the person to whom such article is so agreed to be sold and delivered shall be a party to