Dameron v. State
| Decision Date | 31 January 1844 |
| Citation | 8 Mo. 494 |
| Parties | DAMERON v. THE STATE. |
| Court | Missouri Supreme Court |
ERROR TO JASPER CIRCUIT COURT
HENDRICK, for Plaintiff.
The plaintiff in error was indicted by the grand jury of Jasper county, under the eighth section of the eighth article of the act concerning Crimes and Punishments. The indictment charged that the defendant, on, &c., at, &c., “was guilty of open and gross lewdness and lascivious behavior, by then and there publicly cohabiting with one Sally Ann F., against the form of the statute,” & c. The defendant moved to quash the indictment, but the court overruled the motion. A trial was had, and the defendant convicted and fined. No bill of exceptions was taken, preserving the evidence, and the only matter properly before the court is the sufficiency of the indictment.
The eighth section of the eighth article of the act concerning Crimes and Punishments, provides against three classes of offenses. The two first can only be committed where one of the guilty parties is married; the third may be committed by a person either married or single, and is in the words of the law, some act of “open, gross lewdness or lascivious behavior.” In a prosecution for the last offense, it is not sufficient to charge the defendant generally in the words of the act, with being guilty of “open, gross lewdness and lascivious behavior,” but the specific act in which the lewdness or lasciviousness is displayed must be specified at least with that degree of certainty that would advise the accused of the specific charge he is called on to defend.
It seems to us that this is not done in this indictment with that clearness and certainty which is requisite in criminal pleadings. If the act of lewdness charged was designed to embrace the offenses specified in the two first clauses of the section, with the omission of the aggravating incident that one of the parties was married, there should have been a distinct averment to that effect; and if the words “by publicly cohabiting with one S. F.,” could be regarded as such averment, or as supplying the place of such averment, the charge is still defective in not employing some language indicative of a continuous offense, and negativing the idea of a single act of cohabitation. It should have been “by publicly, lewdly and lasciviously abiding and cohabiting with one F.”
If, on the other hand, the act of lewdness or lascivious behavior designed to be charged was not of the character specified in the two first...
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