Griffin v. State

• Decision Date: 01 November 1902
• Parties: GRIFFIN v. STATE.
• Court: Tennessee Supreme Court

70 S.W. 61

109 Tenn. 17

GRIFFIN v. STATE.

Supreme Court of Tennessee.

November 1, 1902

Appeal from circuit court, Jefferson county; W. R. Hicks, Judge.

Lee Griffin was convicted of abduction, and he appeals. Affirmed.

W. H Jones and W. O. Mims, for appellant.

Charles T. Cates, Jr., Atty. Gen., for the State.

NEIL J.

There is no error in the judgment of the court below, and it must be affirmed. We have examined all the grounds assigned for reversal, and find none of them well taken. They are as follows:

1. That the indictment fails to aver the chastity of the female alleged to have been abducted. The statute reads: "Any person who takes any female from her father, mother, guardian or other person having the legal charge of her, without his or her consent, for the purpose of prostitution or concubinage, shall upon conviction, be imprisoned in the penitentiary not less than ten nor more than twenty one years." Shannon's Code, § 6462. The statute contains no provision concerning the chastity of the female. In Jenkins v. State, 15 Lea, 674, to which counsel for the prisoner have cited us, it was held that the defendant could not be convicted on a state of facts showing that before the alleged abduction the female was a person of "notorious bad character, and had the character of and was a public prostitute," and her mother knew of her leaving with the defendant the day she left, or the day after, made no effort to recover her, and offered to quit the prosecution for $100. In Scruggs v. State, 90 Tenn 82, 15 S.W. 1074, it was held that it was no bar to a conviction that prior to the abduction the female had been guilty of improper and familiar conduct with some other man or men, provided at the time (of the abduction) "she was living a chaste and virtuous life with her father and mother and under their care and control, and in their custody." This was contained in the charge of the circuit judge, and was said by him in respect of evidence to the effect that the female on one or more occasions prior to the abduction had had sexual intercourse with the defendant and one or two other men. This charge was sustained by the court as correct. It was held in that case to be sufficient if the abducted female was "at the time living a chaste and virtuous life." In South v. State, 97 Tenn. 496, 37 S.W. 210, it was held to be no bar to conviction that the female had, prior to her abduction, on one or more occasions, indulged in sexual intercourse with the defendant, if she was otherwise living a chaste and virtuous life. In Whart. Cr. Law, § 2672, it is said that if, since prior acts of unchastity, the female has reformed, she reacquires the protection of the statute. "For," says the author, "it would be inhuman and perilous to assume that women once fallen, but who have reformed, are to be afterwards exposed, without redress, to a seducer's arts. The policy of the law in such cases is to reclaim and guard." We do not find, in either of our cases cited, any indication that the indictment must ever the chastity of the female. The question arose in these cases either upon the charge of the court, or upon the sufficiency of the testimony; and we are of opinion it may properly arise at that stage of the case, but not on the sufficiency of the indictment. The indictment in the present case is in the language of the statute, and that is, in general, sufficient. Wilson v. State, 103 Tenn. 87, 52 S.W. 869; 1 Whart. Cr. Law, § 364. We are cited in defendant's brief to several authorities, to which we have not access, as holding a contrary view. Two of the citations referred to, to which we have access (2 Whart. Cr. Law, § 1757; 1 Am. & Eng. Enc. Law [2d Ed] p. 178), we have examined, and find they do not sustain the defendant's contention. They do not refer to the form of the indictment, but only to the testimony. However, regardless of these authorities, we think, as the statute describes a complete offense, it is sufficient to charge the offense in the indictment in the language of the statute. The qualification introduced into the statute by judicial construction in the cases referred to at most could only be in the nature of an exception, to the effect that the defendant could not be held guilty if the female was living an unchaste life at the time of the abduction, and this would be merely a matter of defense, to be shown by the accused. For the principle as referring to negative exceptions in statute, see Villines v. State, 96 Tenn. 141, 33 S.W. 922; State v. Jackson, 1 Lea, 680, and Lambeth v. State, 3 Tenn. Cas. 754.

2. It is next objected that the indictment is bad because it avers that the defendant "did take," etc., the said female from the custody of her mother, etc., "for the unlawful and felonious purpose of prostitution and concubinage." It is said that two offenses are thus charged in the same count, and it is bad for duplicity. In Whart. Cr. Law, § 294, it is said that, where a statute distinctively enumerates the offenses or the intent necessary to constitute the offenses disjunctively, they cannot be stated disjunctively in the indictment, "but to state them conjunctively when they are not repugnant is always allowable." And in Cornell v. State, 7 Baxt. 520, it was held that, when two offenses are charged in the indictment, but as parts of the same transaction, and as one offense, proof of either offense so charged would be sufficient to support a conviction, and the indictment would be good. So, in State v. Ailey, 3 Heisk. 8, an indictment was held good which charged that the defendant did unlawfully maliciously, and feloniously "slit, cut off, and bite off the ear of John Tarwater," etc. The court said that, while each of the acts of slitting, cutting, and biting off might be committed separately, and be indictable, yet it could not be said that they might not be committed as part of the same transaction, so as to constitute one offense; nor that, if they were jointly charged, the proof of either would not be sufficient to support the indictment; that the defendant could not be embarrassed in his defense, nor could the court in pronouncing judgment, as where felonies of a different nature, or distinct felonies and misdemeanors, are embraced in the same indictment. In Whiteside v. State, 4 Cold. 175, 183, the indictment charged the defendant with "feloniously, willfully, and maliciously burning a certain house or outhouse of one George Kinney." The court said the language of the statute was in the alternative or disjunctive, and created, therefore, two offenses. "It follows, therefore," said the court, "that the charge in the indictment, being in the alternative, by all the authorities, is void," etc. Commenting on this case in State v. Ailey, supra, the court said (page 10): "This view of the case is not in conflict with the opinion in Whiteside v. State, 4 Cold. 182, 183. There the charge was in the disjunctive, but here the various acts are connected by the copulative conjunction." The same principle is illustrated in the following cases: Under the statute in New York making it an offense to take a female for the purpose of prostitution, concubinage, or marriage it was held that an indictment charging a taking for the purpose of "prostitution, concubinage, and marriage," instead of alleging a taking for the purpose in the alternative, would justify a conviction for a taking for either of these purposes. People v. Parshall, 6 Parker, Cr. R. 129, cited in note to Cycl. Law & Proc. p. 157. The Iowa Code (section 3985) provides that "if any person destroy, injure, or secrete any goods, *** he shall be punished," etc. Under this section it was held that an indictment charging that defendants did injure and secrete certain property was not bad for duplicity. State v. Phipps, 64 N.W. 411. In Oregon it is held that, where the statute makes the commission of different acts a crime, and which acts are stated disjunctively in the statute, the indictment may, as a general rule, embrace the whole in a single count, but that it must use the conjunctive "and" where "or" occurs in the statute, else it will be defective for uncertainty. State v. Carr, 6 Or. 133; State v. Bergman, Id. 341. In Missouri it is held that, where a statute enumerates offenses, or the intent necessary to constitute them, disjunctively, the indictment must charge them conjunctively when the acts are not repugnant (State v. Flint, 62 Mo. 393); and the defendant under such an indictment may be convicted of either (State v. McCollum, 44 Mo. 343). Again, in the same state it is held that when a statute in one clause forbids several things, or creates, in the alternative, several offenses, which are not repugnant in their nature or their penalty, the cause is treated in criminal pleading as though it created but one offense; and all of the offenses may be united conjunctively in one count, and such count is sustained by proof of any one of the offenses charged. State v. Murphy, 47 Mo. 274; State v. Fitzsimmons, 30 Mo. 236. The same rule is laid down in the tenth volume of the Encyclopedia of Pleading and Practice in the following language: "When a statute enumerates several acts in the alternative, the doing of any of which is subjected to the same punishment, all of said acts may be charged cumulatively as one offense. And where the statute provides in the alternative several means by which the offenses may be committed, or where the intent or purpose is set out in several aspects disjunctively, they may all be charged in setting out one and the same offense. But the rule has been limited in its application to cases where the offenses created in the statute are not repugnant, either in themselves or in the punishment therefor." Pages 536, 538. In a note to the text...