Opinion
June Term, 1850.
JUDGES PRESENT. Smith, Field, Leigh, Lomax, Thompson.
1. The act 1 Rev. Code, ch. 141, § 6, p. 555, which makes the oath of two credible witnesses necessary to a conviction in a case of adultery and fornication, is repealed by ch. 27, § 2, p. 164, of the Criminal Code, Sess. Acts of 1847-48.
2. One credible witness is now sufficient to authorize a conviction for adultery or fornication.
Elizabeth Cregor was indicted for adultery with James Cole, in the Circuit court of Wythe county, at the April term of the Court for 1849. On the trial, the jury rendered the following verdict: "We find upon the evidence of one credible witness that the defendant is a married woman: That within twelve months previous to the finding this indictment, she habitually bedded with James Cole in the indictment mentioned, as man and wife, the said Cole not being her husband. If upon the foregoing facts so found upon the evidence of but one witness, the law be for the Commonwealth, we find the defendant guilty, and assess her fine to twenty dollars; but if the law be for the defendant, we find her not guilty."
Upon the finding of this verdict, the Circuit court, with the consent of the defendant, adjourned to this Court the following questions:
1st. Is so much of the sixth section of the act, entitled "An act for the effectual suppression of vice, and punishing the disturbers of religious worship and Sabbath breaking," 1 Rev.. Code, page 555, as makes the oaths of two credible witnesses necessary to a conviction, in cases of adultery and fornication, repealed by the 2d section of the 27th chapter of the Criminal Code, Sess. Acts 1847-48, page 164?
2d. What judgment ought to be entered on the special verdict?
The Court is of opinion and doth decide, first, that so much of the 6th section of the act for the effectual suppression of vice and punishing the disturbers of religious worship and Sabbath breakers, 1 Rev. Code, p. 555, as makes the oath of two credible witnesses necessary to a conviction in cases of adultery and fornication, is repealed by the 2d section of the 27th chapter of the Criminal Code, Sess. Acts 1847-48, page 164. And secondly, that judgment ought to be rendered on the special verdict in favour of the Commonwealth for the fine assessed by the jury. Which is ordered to be certified, c.