State v. Byron
| Decision Date | 31 October 1854 |
| Citation | 20 Mo. 210 |
| Parties | THE STATE, Respondent, v. BYRON, Appellant. |
| Court | Missouri Supreme Court |
1. An indictment of a married man for lewdly and lasciviously abiding and cohabiting with a female, under the second clause of section 8 of article 8 of the act concerning “Crimes and Pumshments.” (R. C. 1845,) must state that the parties lewdly and lasciviously abided and cohabited with each other, in the words of the statute.
Appeal from St. Louis Criminal Court.
Indictment for adultery. The second count of the indictment was precisely as follows: “And the grand jurors aforesaid, upon their oath aforesaid, do further present, that Richard J. Byron, late of St Louis county, on the first day of January, in the year of our Lord, 1853, and on divers other days and times, between that day and the day of the finding of this indictment, unlawfully and wickedly did lewdly and lasciviously abide and cohabit with one Eliza Miller, he, the said Richard J. Byron, being then and on said other days and times there a married man, and having then and on said other days and times a wife living, but the said Richard J. Byron and Eliza Miller were never married to each other; against the peace and dignity of the State.”
Uriel Wright, Delafield & Kribben, for appellant.
H. A. Clover, for the State.
Byron, who was a married man, was indicted for living in a state of open and notorious adultery with an unmarried woman, and for lewdly and lasciviously abiding and cohabiting with the same woman, (naming her.) There were two counts in the indictment, charging these separate offences. The jury found the defendant guilty under each count, and on the first assessed the punishment at three months' imprisonment in the county jail, and on the second, at a fine of $300. As only one offence was proved on the trial, the court granted a new trial on the first count, and thereupon the circuit attorney entered a nolle prosequi as to that count, and judgment as entered on the second count. A motion was made in arrest of judgment, which was overruled, and the defendant appealed.
The court would have found itself embarrassed in granting a new trial as to one count in an indictment and entering a judgment on the other, had not the difficulty been obviated by entering a nolle prosequi, as to the count on which the new trial had been granted.
The clause of the statute under which the second count is framed, is in these words: “Every man and woman ...
To continue reading
Request your trial
-
State v. Clawson
... ... one count, and so mingled the offences together that the ... defendant cannot tell with what he is charged. It does not ... aver that they were not married to each other. The state must ... prove that fact; hence it is necessary to aver it. State ... v. Bess, 20 Mo. 419; State v. Byron, 20 Mo ... 210. All the material facts necessary to constitute the crime ... must be charged. But when does the indictment in this case ... aver that this defendant was unmarried? Some two or three ... different dates having been used, the word " then" ... is too indefinite and uncertain and ... ...
-
State v. Jaeger
...F. & E. L. Gottschalk for appellant. 1. The indictment is insufficient. State v. Mitchell, 25 Mo. 420; State v. Ball, 27 Mo. 324; State v. Byron, 20 Mo. 210; State v. Fulton, 19 Mo. 680; State v. Ross, 25 Mo. 426; Spratt v. State, 8 Mo. 247. 2. The verdict is not supported by the evidence, ......
-
State v. West
...has not been directly passed upon in this state, but has been indirectly. State v. Hinson, 7 Mo. 244; State v. Dameron, 8 Mo. 494; State v. Byron, 20 Mo. 210; State v. Crowner, 56 Mo. 147. In Iowa, under a similar statute to ours, the question has been decided favorably to appellant. State ......
-
State v. Berry
...EMMET PHILIPS, for the respondent. The indictment is drawn under the second clause of section 1541, and is good. R. S., sect. 1541; State v. Byron, 20 Mo. 210. The Supreme Court will not lightly interfere with verdicts, even in criminal cases, unless the verdict is manifestly unjust. State ......