Hardy v. United States, 602.
| Decision Date | 02 December 1895 |
| Docket Number | 602. |
| Citation | 71 F. 158 |
| Parties | HARDY v. UNITED STATES. |
| Court | U.S. Court of Appeals — Eighth Circuit |
R Hardy, the plaintiff in error, on June 13, 1893, became surety in a bail bond which was executed by Abram H. Kelly as principal, to secure the personal appearance of said Kelly, before the United States court in the Indian Territory, at the next term thereof, 'then and there to answer what might be objected against him. ' The bond was taken and approved by Moran Scott, a commissioner of the United States court in the Indian Territory. It recited, in substance, that the said Abram H. Kelly had been brought before said commissioner, charged with the offense of soliciting men to commit adultery and fornication, and that upon examination it had appeared that there was probable cause to believe that he was guilty of the offense, whereupon the said commissioner had ordered that he give bail in the sum of $200 for his appearance before the United States court in the Indian Territory at the October term, 1893, of said court, to be held at Ardmore, in the Indian Territory. At the October term, 1893, of said court, Kelly failed to appear and plead to an indictment for inciting and soliciting persons to commit adultery, which was duly returned against him by the grand jury, whereupon the bail bond was forfeited, and a scire facias was issued against R. Hardy, the surety in the bond. In response to the writ of scire facias, the surety appeared, and contended, in substance, that the bail bond in question was void because the information filed before the commissioner failed to charge said Kelly, the principal in the bond, with the commission of any offense against the laws that were in force in the Indian Territory. This defense was overruled, and a judgment was rendered against the defendant for the sum of $100. To reverse that judgment, the defendant below has prosecuted a writ of error to this court.
H. C Potterf and Henry Hardy filed brief for plaintiff in error.
E. C Stringer, U.S. Atty.
Before CALDWELL, SANBORN, and THAYER, Circuit Judges.
THAYER Circuit Judge, after stating the case as above, .
In the brief filed by counsel for the plaintiff in error considerable space is devoted to the discussion of the question whether the indictment which was returned against the accused, and the information that was filed before the commissioner, charged an offense against the laws that were then in force in the Indian Territory. Some authorities have also been cited in support of the proposition that adultery and fornication are not crimes at common law, and that solicitation to commit fornication and adultery is not a crime, unless adultery and fornication are made crimes by statute in the state where the solicitation is sought to be punished, and that it is not...
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