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CRIMINAL LAW-ADULTERY. - Conviction for adultery is proper upon proc showing adulterous intercourse between the parties not less than four different times within the period of a month, with a confession by defendant that he had indulged in such illicit intercourse whenever ne desired; and the jury may determine whether there existed in the minds of the parties a purpose to continue the adulterous intercourse, so as to constitute "living together in adultery," within the meaning of section 4012, Criminal Code of Alabama.

CONVICTION FOR ADULTERY. -The instructions asked and refused were as follows: "1. The jury are not authorized to infer that the parties lived together in a state of adultery or fornication from the mere fact that they had sexual intercourse as many as four times within the same month; nor are they authorized to infer, from these facts alone, an intention on their part to continue these acts; there must be evidence to show a living together in adultery. 2. The fact that defendant and said female lived in the same house for about a month, and had sexual intercourse four times, two of which were in the house and the other two at other places, is not, of itself, sufficient to show the state or condition existing between the parties, but there must be other evidence to show the state or condition denounced by the statute."

J. D. Gardner, for the appellant.

Thomas N. McClellan, attorney-general, for the state.

SOMERVILLE, J. The evidence in this case, introduced on the trial, unquestionably authorized the jury to infer that the defendant lived in a state of adultery with the female named in the indictment. The facts show adulterous intercourse not less than four different times, extending through a period of

AM. ST. REP., VOL. XI.-2

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one month, with a confession by the defendant that he had indulged in such illicit intimacy with said female whenever he desired. It was for the jury, under the circumstances, to say whether there existed in the minds of the parties a purpose to continue the adulterous intercourse so as to constitute a "living together in adultery," within the meaning of the statute: Crim. Code 1886, sec. 4012; Hall v. State, 53 Ala. 463; Smith v. State, 39 Id. 554; Collins v. State, 14 Id. 608; Bodiford v. State, decided at present term.

The charges requested by the defendant invaded the province of the jury, and were properly refused. Affirmed.

ADULTERY, WHAT IS: See monographic note to Commonwealth v. Call, 32 Am. Dec. 289, 290.

CROCHERON v. STATE.

[86 ALABAMA, 64.]

CRIMINAL LAW LARCENY. -A servant employed on a farm, who has the care and custody of a mule belonging to his master, is guilty of larceny when he fraudulently converts the mule to his own use and sells it. CONVICTION for larceny. Defendant was employed by one Marx as a farm-hand, and while so employed had the custody and care of a mule for the purpose of plowing with it. While so employed he took the mule and plowed with it until sunset one day, after which Marx, the owner, did not see it for some days, when he found it in the custody of one Childs, to whom defendant had sold it. The court refused to charge the jury, at defendant's request, "that if they believe the defendant had charge of the mule, and took it out of the plow whilst in his custody, then he is not guilty of larceny."

John C. Anderson, for the appellant.

Thomas N. McClellan, attorney-general, for the state.

SOMERVILLE, J. The conviction of the defendant for larceny was proper under the circumstances. The prosecutor had parted only with the custody of the mule, as distinguished from the possession, which was still in him as owner, although the defendant had the custody of the animal as mere employee or servant. It has often been decided, and is now settled law, that goods in the bare charge or custody of a ser

vant are legally in the possession of the master, and the servant may be guilty of trespass and larceny by the fraudulent conversion of such goods to his own use: Oxford v. State, 33 Ala. 416; 2 Bishop on Criminal Law, 7th ed., sec. 824.

It is accordingly said by Lord Hale that it would be larceny if a butler should appropriate his master's plate, of which he had charge; or the shepherd, his master's sheep in his custody; and so of an apprentice who feloniously embezzles his master's goods: 1 Hale, 506; Roscoe's Criminal Evidence, 7th ed., *639. In all such cases, the custody of the servant is distinguishable from that of a bailee, or other person who has a special property in the goods, by reason of being under a special contract with respect to them. A mere servant or employee has no such special property: 3 Greenl. Ev., 14th ed., sec. 162. Where, however, a bailee having such special property in goods converts them to his own use, no conviction. of larceny can be had without proving a fraudulent or felonious intention on his part at the time he received the goods in bailment: 2 Wharton on Criminal Law, 9th ed., sec. 963; Watson v. State, 70 Ala. 13; 45 Am. Rep. 70.

The charge requested by the defendant was in direct, conflict with this view of the law, and was properly refused. The judgment is affirmed.

LARCENY - MASTER AND SERVANT. - It is larceny in a servant to open a package intrusted to his care, and take away any part of the goods therein, and dispose of them to his own use animo furandi: State v. Fairclough, 29 Conn. 47; 76 Am. Dec. 590. If the goods of a master fraudulently appropriated by his servant were in the actual or constructive possession of the master at the time they were taken, the offense of the servant will be larceny: Commonwealth v. Berry, 99 Mass. 428; 96 Am. Dec. 767.

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LARCENY - WHAT CONSTITUTES THE CRIME. There must be a wrongful taking possession of the goods of another, with intent to deprive the owner of his property, either permanently or temporarily. The accused must have acquired dominion, so as to enable him to take actual custody or control, followed by asportation, which severs the property from the possession of the owner to some appreciable extent. But the caption may be constructive: Frazier v. State, 85 Ala. 17; 7 Am. St. Rep. 21, and note 23; note to State v. Homes, 57 Am. Dec. 271-286.

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BODIFORD V. STATE.

[86 ALABAMA, 67.]

CRIMINAL LAW - ADULTERY. — To constitute "living in adultery" under section 4012, Alabama Criminal Code, a single or occasional adulterous act, without more, is not sufficient. There must be a continuation, or agreement for continuation, coupled with one or more acts; but when such acts and circumstances are proved, the jury may determine whether there was such continuation as amounts to living together, or a mutual guilty consent, express or implied, for such continuation. The parties need not occupy the same dwelling to constitute the crime, if such guilty consent is found.

J. D. Gardner, for the appellant.

Thomas N. McClellan, attorney-general, for the state.

STONE, C. J. To constitute a living in adultery, within the statute (Code 1886, sec. 4012), a single or occasional act, without more, is not sufficient. There must be continuation, or an agreement for continuation, coupled with one or more acts, before it can be affirmed that the relation is established. It is a crime of darkness and secrecy, and hence always difficult of direct proof. On this account it is held that when acts and complicating circumstances are proved, it becomes largely a question for the jury to determine whether there was in fact such continuation as amounted to a living together, or, what is equivalent to it, a mutual guilty consent, express or implied, for such continuation. And the parties need not occupy the same dwelling, if there was a mutual expectation and understanding that the relation was to be kept up, or if in fact it was kept up, so as to satisfy the jury, beyond a reasonable doubt (or, its equivalent, to a moral certainty), that there must have been such understanding.

As the antithesis of this, however, a single act, or occasional acts, not indicating a consentive or pre-arranged continuation of the illicit conduct, would not be a living together within the meaning of the statute: Collins v. State, 14 Ala. 608; Quartemas v. State, 48 Id. 269; Hall v. State, 53 Id. 463; Clark's Manual, sec. 1546; State v. Crowley, 13 Ala. 172.

The proof of adulterous cohabitation within twelve months before the indictment was found was not very full; but, considered in connection with their proven previous conduct, it was sufficient to authorize its submission to the jury.

There was a separate exception reserved to three charges given at the instance of the state. The circuit court, in each

of these rulings, stated the law correctly, as we have declared it above.

Affirmed.

ADULTERY-WHAT CONSTITUTES THE CRIME: See monographic note to Commonwealth v. Call, 32 Am. Dec. 289, 290; compare Smith v. State, ante, p. 17. In order to constitute the offense of lewd and lascivious cohabitation, it is essential that it be proved that the parties cohabit together, — that is, live together in the same house as man and wife; and proof of occasional acts of illicit intercourse is not of itself sufficient: Pruner v. Commonwealth, 82 Va. 115. To cohabit with another in adultery, within the meaning of the Indiana Revised Statutes, is for a man and a woman to live together in the manner of husband and wife, while not in reality being such, for a period of time: Jackson v. State, 116 Ind. 464. Where an indictment charged that defendants "did unlawfully live together in adultery, having carnal intercourse with each other," under the Penal Code of Texas adultery being committed either by the living together and having carnal intercourse, or by habitual carnal intercourse without living together, proof of carnal intercourse while not living together is insufficient to convict of the crime: Miller v. State, 24 Tex. App. 346.

GOODWIN v. SIMS.

[86 ALABAMA, 102.]

JURISDICTION OF PROBATE COURT to order the sale of lands of a decedent is statutory and limited, and must appear from the record. No intendments will be made in its favor, but such jurisdiction attaches when a petition is filed by the proper party, setting forth any of the statutory grounds for a sale; and jurisdiction having once attached, any intervening errors or irregularities in the proceedings will not avail to avoid the sale when collaterally impeached.

PROBATE COURT — JURISDICTION NOTICE TO NON-RESIDENT.

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- Recital in the record of a probate court that a party, being a non-resident, was notified of an application for the sale of land of a decedent, and of the day set for the hearing, by publication as required, is conclusive on col lateral attack, when not negatived or falsified by the record itself. JUDICIAL SALE MISTAKE IN RECORD-COLLATERAL ATTACK. -When the inspection of the entire record in proceedings for the sale of a decedent's land discloses the nature and extent of a clerical error therein, such record will correct itself, and the court will treat it as corrected when the validity of the proceedings is collaterally attacked. JUDICIAL SALE - JURISDICTION. — When a court of limited jurisdiction by the recitals in its decree ascertains a jurisdictional fact, such adjudication is final and conclusive when the decree is collaterally assailed; and when the decree is silent, such jurisdictional fact may appear from the other parts of the record. JURISDICTION. — ENTIRE RECORD OF COURT imports absolute verity, and the recitals in a decree may be explained, limited, or qualified by other parts of the record, and it may be looked to to ascertain the jurisdictional facts when there is no finding by the court; but when the power to

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