Richey v. State

Decision Date06 April 1909
Docket NumberNo. 21,426.,21,426.
Citation87 N.E. 1032,172 Ind. 134
PartiesRICHEY v. STATE.
CourtIndiana Supreme Court

OPINION TEXT STARTS HERE

Appeal from Circuit Court, Hamilton County; Ira W. Christian, Judge.

J. William Richey was convicted of fornication, and appeals. Reversed, with directions to sustain a motion for a new trial.

John O. Spahr and James A. Ross, for appellant. C. M. Gentry, James Bingham, Alexander G. Cavins, Edward M. White, and W. H. Thompson, for the State.

MONTGOMERY, J.

Appellant was convicted upon a charge of fornication, his motion for a new trial was overruled, and a fine of $300 and costs assessed. The only error properly assigned is the overruling of the motion for a new trial. The grounds of this motion were that the finding of the court is not sustained by sufficient evidence, and is contrary to law. The statute upon which the prosecution was founded reads as follows: “Whoever cohabits with another in a state of adultery or fornication shall be fined not exceeding five hundred dollars, or imprisonment in the county jail not exceeding six months, or both.” Section 2353, Burns' Ann. St. 1908. The evidence to sustain the conviction was brief and uncontradicted, and established the following facts: That appellant was 38 years of age, married, and resided with his wife in the town of Carmel, in Hamilton county, from the 15th until about the 25th day of April, 1907. His codefendant was a single woman, 19 years of age, who assisted his wife in the performance of housework for a few days during that period, and was paid for her services, and within that time appellant had sexual intercourse with the girl twice, in his residence.

“Fornication,” as understood by the common law, was unlawful sexual intercourse between a man, either married or single, and an unmarried woman. State v. Chandler, 96 Ind. 591;Hood v. State, 56 Ind. 263, 26 Am. Rep. 21;State v. Lash, 16 N. J. Law, 380, 32 Am. Dec. 397; 19 Cyc. 1434. An act of fornication was not punishable as a common-law offense unless accompanied by such circumstances as per se constituted a misdemeanor, as for example to make the act a public nuisance. Crouse v. State, 16 Ark. 566; Anderson v. Commonwealth, 5 Rand. (Va.) 627, 16 Am. Dec. 776;Pollard v. Lyon, 91 U. S. 225, 23 L. Ed. 308. The common law regarded clandestine acts of adultery and fornication as a gross violation of personal rights for which redress might be had in a civil action by the injured party, but left the punishment of the sin to the up-braidings of a guilty conscience and to be dealt with by religious judicatories. The criminal statutes of this state have adopted substantially the common-law doctrine upon this subject. The earlier statutes denounced as a crime the living “in open and notorious adultery or fornication.” Rev. St. 1838, p. 217; Rev. St. 1843, p. 977; 2 Rev. St. 1852, p. 464. In the case of Wright v. State, 5 Blackf. 358, 35 Am. Dec. 126, this court said: “The testimony did not prove a living together as is required by the statute, but simply, if it proved anything, an occasional illicit intercourse between the defendant and the woman named in the indictment. The offense consists in an open and notorious cohabitation, and unless it be of that character it is not indictable.” Lumpkins v. Justice, 1 Ind. 557;State v. Gartrell, 14 Ind. 280;Gaylor v. McHenry, 15 Ind. 383.

The statute upon which the present case was based omits the words “open and notorious,” but still requires that the parties shall cohabit in a state of fornication to constitute a public offense. To “cohabit,” in the sense in which that word is used in this statute, is for a man and woman to live together in the manner of husband and wife. Jackson v. State, 116 Ind. 464, 19 N. E. 330;State v. Chandler, 96 Ind. 591;State v. Johnson, 69 Ind. 85;State v. Cassida, 67 Kan. 171, 72 Pac. 522;Turney v. State, 60 Ark. 259, 29 S. W. 893. In the case of Jackson v. State, supra, Judge Mitchell, speaking for the court with reference to the meaning of the word “cohabit,” said: “It implies a dwelling together for some period of time, and is to be understood as something different from occasional, transient interviews, for unlawful and illicit intercourse. To sustain an indictment under this section, the evidence must establish cohabitation, including one or more acts of sexual intercourse, between parties not lawfully occupying the relation of husband and wife to each other.” This statute does not deal with private acts of incontinence and unchastity, but its design, like that of similar laws in other states, was to prohibit and punish the illicit relations of persons of opposite sex, who, without lawful marriage, cohabit or live together in the...

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