State v. Bain

• Decision Date: 28 November 1887
• Docket Number: 13,759
• Parties: The State v. Bain
• Court: Indiana Supreme Court

14 N.E. 232

112 Ind. 335

The State v. Bain

No. 13,759

Supreme Court of Indiana

November 28, 1887

From the Huntington Circuit Court.

The judgment is reversed, with costs, and the cause is remanded with instructions to sustain the demurrer to the answer or plea in abatement, and for further proceedings not inconsistent with this opinion.

L. T Michener, Attorney General, E. C. Vaughn, Prosecuting Attorney, J. H. Gillett and R. C. Griffith, for the State.

B. M Cobb and C. W. Watkins, for appellee.

OPINION

Howk, J.

The affidavit and information herein, filed in the court below on the 2d day of April, 1887, charged, in substance, that appellee, Sarah H. Bain, on the 1st day of January, 1887, at Huntington county, in this State, did then and there, and on divers other days and times, as well before as after that date and previous to this presentment, at and in the county and State aforesaid, she, appellee, a single woman, and Frazy E. Low, at the times aforesaid, then and there having a lawful wife living, and at all of said times she, Sarah H Bain, and Frazy E. Low, not being married to each other, did then and there during said times, unlawfully live and cohabit together as man and wife, as Alzina Low had complained on oath, contrary to the form of the statute, etc.

Appellee answered specially, under oath, by what is called her plea in abatement herein; and to this answer or plea the State demurred, upon the ground that it did not state facts sufficient to constitute a legal bar to this prosecution, or, in any way, to abate the same. This demurrer was overruled by the court, and to this ruling the State at the time excepted; and the State refusing to reply or plead further, it was adjudged by the court that appellee go thence without day, upon her plea in abatement.

From this judgment the State appeals to this court and has here assigned as error the overruling of its demurrer to appellee's answer or plea in abatement.

In her answer or plea, appellee said that the State ought not to have or maintain this prosecution against her, because she is charged with having committed the offence of adultery and fornication with one Frazy E. Low; and she averred that, at the January term, 1887, of the court below, said Frazy E. Low was presented therein by information and affidavit charging him with adultery and fornication with appellee herein; that the acts and circumstances, and all the evidence whereby the State expected to convict appellee in this cause, were the same as, and no other than, those which the State relied on for the conviction of said Frazy E. Low at the January term, 1887, as aforesaid; that at such January term, 1887, the State by its prosecuting attorney, with the permission of the court below, agreed that if Frazy E. Low would give a bond in the sum of fifty dollars for his appearance from time to time whenever the State should require, that he should support his wife and family, and be guilty of no acts of impropriety with appellee herein or others, and conduct himself as an industrious and orderly citizen, then such cause should be continued until the October term, 1887, of the court below, and at such term he, Low, should be discharged and wholly released from said charge.

Appellee further averred, that said Low duly filed with the clerk of such court the sum of fifty dollars in money as his bond; that since said time he, Low, had worked wherever the road for which he was employed had called on him, and had put in all the time he could; that he, Low, had not been guilty of any acts of adultery or fornication with appellee herein, nor with any one else, of appellee's knowledge, since said time; and that he, Low, had been acting in good faith with the State in such matter; that appellee herein, since said agreement was so made, had been guilty of no acts of impropriety with him, Low. Wherefore appellee said that this prosecution against her ought to abate until he, Low, should violate his agreement with the State.

Are the facts stated in appellee's answer or plea herein, the substance of which we have given, sufficient to constitute a legal bar to the State's cause of action, or to abate merely the pending prosecution? The court below held, as we understand the record now before us, that the facts stated in such answer or plea, admitted to be true by the State's demurrer as the case is now presented here, are sufficient merely to abate the pending prosecution. In other words, the court below held, as we understand its decision, that pending the agreement between the State and Frazy E. Low, and prior to any violation thereof by Low, the State can not prosecute appellee, Sarah H. Bain, for her participation in the same adultery or fornication which was the subject-matter of the aforesaid agreement. If such agreement was valid and binding on the State--that is, if it was such an agreement as the prosecuting attorney, with the approval of the proper court, might lawfully make in the disposition of a pending prosecution--then, it can not be doubted, as it seems to us, that the ruling of the lower court on the State's demurrer to the answer or plea herein, as we have stated such ruling, was surely not erroneous, but was clearly right. The State is, and ought to be, more interested in the reformation than...