Patterson v. State

• Decision Date: 14 April 1941
• Docket Number: 34421.
• Citation: 190 Miss. 643,1 So.2d 499
• Court: Mississippi Supreme Court
• Parties: PATTERSON et al. v. STATE.

1 So.2d 499

190 Miss. 643

PATTERSON et al. v. STATE.

No. 34421.

Supreme Court of Mississippi

April 14, 1941

Hilton & Kendall, of Jackson, for appellants.

Greek L. Rice, Atty. Gen., and Geo. H. Ethridge, Asst. Atty. Gen for appellee.

McGEHEE Justice.

A reversal is sought in this case upon three grounds, (1) that the indictment against the appellants purporting to charge them with the crime of unlawful cohabitation, instead of alleging that the unlawful cohabitation was habitual, charged that on the ------- day of -------, 1939, "and then continuously until the day of the filing and returning of this indictment, John Patterson, a man, and Etta Anderson, a woman, they not being then and there lawfully married each to the other, did lewdly and unlawfully cohabit together in adultery"; and that theretofore the indictment charged no offense under the law; (2) that the indictment having charged that the appellants unlawfully cohabited in adultery it was necessary that the state should prove that one of them was then married to some other person; and it is urged that the proof fails to establish such fact; and (3) that the Court erred in refusing to grant the peremptory instruction requested on behalf of the appellants, and in granting the several instructions on behalf of the state which failed to require the jury to believe from the evidence beyond a reasonable doubt that either of the appellants was married to another person at the time of the alleged unlawful cohabitation as a condition precedent to the jury's right to convict them.

The indictment, except as to the names of the accused and the dates stated therein, is in the exact language as that contained in the indictment under review by the Court in the case of Kemp and Morrison v. State, 121 Miss. 580 83 So. 744, and which the Court inferentially approved as sufficient in both form and substance. In any event, we are of the opinion that it was sufficient to apprise the appellants of the nature and character of the accusation against them and that if the same was deficient in any particular, the defect would have been amendable if the point had been made in the trial court, which was not done. Moreover, Section 772, Code of 1930, under which the indictment in the present case is drawn, is in the same language as Section 1029, Code of 1906, which was under consideration in Kemp et al. v. State, supra, and the first part of that statute, which sets forth that which constitutes the crime, merely provides that: "If any man and woman shall...