Lord v. State

• Decision Date: 12 May 1885
• Citation: 23 N.W. 507,17 Neb. 526
• Parties: LORD v. STATE.
• Court: Nebraska Supreme Court

17 Neb. 526

23 N.W. 507

LORD

v.STATE.

Supreme Court of Nebraska.

Filed May 12, 1885.

Error from Brown county.

J. F. Burns and D. A. Holmes, for plaintiff.

The Attorney General, for defendant.

MAXWELL, J.

The plaintiff in error was convicted of adultery in the district court of Brown county, and sentenced to imprisonment in the county jail for the term of one year, and to pay a fine of $200, and costs. But two errors are relied upon in the plaintiff's brief: First, that the indictment is insufficient; second, that the court erred in permitting the wife of the plaintiff in error to testify against him. The following is a copy of the indictment:

“ The State of Nebraska, Brown county. Of the November term of the district court of the Ninth judicial district of the state of Nebraska, within and for Brown county, in said state, in the year of our Lord one thousand eight hundred and eighty-three, the grand jurors chosen, selected, and sworn, in and for the county of Brown, in the name and by the authority of the state of Nebraska, upon their oaths present: that Uriah W. Lord, late of the county aforesaid, on the first day of April, in the year of our Lord one thousand eight hundred and eighty-three, in the county of Brown and state of Nebraska, aforesaid, the said Uriah W. Lord being then and there a married man, to-wit, being then and there married to one Hannah Lord, on the said first day of April, in the year aforesaid, and from said day continually until the twenty-eighth day of November, A. D. 1883, in the county of Brown, aforesaid, did unlawfully live and cohabit in a state of adultery with one Celia Amit, a female woman.”

Section 208 of of the Criminal Code provides that “if any married man shall hereafter commit adultery or desert his wife, and live and cohabit with another woman in a state of adultery, or if any married man living with his wife shall keep any other woman and wantonly cohabit with her in a state of adultery, * * * every person so offending shall be fined in any sum not exceeding two hundred dollars, and be imprisoned in the jail of the county not exceeding one year.” It will be seen that the statute provides for three classes of cases: First, where a married man commits adultery; second, if he desert his wife, and live and cohabit with another woman in a state of adultery; third, if, living with his wife, he shall keep any other woman and wantonly cohabit with her in a state of adultery. This section is copied from the Criminal Code of Ohio, and the second and third provisions, as numbered above, seem to have been passed by the legislature of that state in 1831. Warren, Crim. Law, 607; Whart, Crim. Law, § 2646.

The indictment in this case is an attempt to charge an offense in the second class, viz., a married man deserting his wife and living in a state of adultery with another woman. To do this the charge should be, in substance, that the plaintiff, being then and there married to (name of wife,) did then and there desert his wife, and thence continually for a space of time did live and cohabit with another woman (naming her) in a state of adultery, and that during such time the accused was a married man, and the person with whom he lived and cohabited was not his wife. A good form of indictment under this provision of the statute is found in Warren, Crim. Law, 615. The statute makes the desertion of the wife a part of the offense, and it should be charged. While it is the duty of the court to give words their ordinary meaning, and where the language of the statute is not used in charging the offense, but other words meaning the same thing, to sustain an indictment, yet there must be a distinct charge of an offense declared to be such by statute, and the court cannot supply by intendment material facts left out of the indictment. As the indictment is defective in some of these particulars, the motion to quash it should have been sustained.

2. Section 331 of the Civil Code provides that “the husband can in no case be a witness against the wife, nor the wife against the husband, except in a...