State v. Carroll

• Decision Date: 03 January 1889
• Citation: 8 S.E. 433,30 S.C. 85
• Court: South Carolina Supreme Court
• Parties: State v. Carroll.

8 S.E. 433

(30 S.C. 85)

State

v.Carroll.

Supreme Court of South Carolina

January 3, 1889

1. Adultery—Indictment.

Gen. St. S. C. § 2589, provides that "adultery is the living together and carnal intercourse with each other, or habitual carnal intercourse with each other, without living together, of a man and woman, when either is lawfully married to some other person. " Held, that the omission of the words "without living together" did not vitiate an indictment under this act. ¹

2. Same—Habitual Intercourse,

On the trial of an indictment under said act, the court properly charged that to constitute the offense the carnal intercourse must be habitual, —"that is, frequent; occasional acts will not be sufficient, "—leaving to the jury how frequently it must be committed to make it "habitual. "

3. Criminal Law—Joint Offense—Trial of One Offender.

The defendant could be tried alone for the offense, although jointly indicted with the woman.

4. Same—Evidence—Admissions.

Resolutions passed by citizens at a public meeting, demanding that defendant leave the town within a prescribed time on pain of an indictment for adultery, and defendant's reply by letter, pledging himself to abandon all connection with the woman, were admissible in evidence, it not appearing that the letter was extorted from defendant by duress.

Appeal from general sessions circuit court of Orangeburg county; J. J. Norton, Presiding Judge.

Daniel J. Carroll was indicted and convicted of adultery, and appeals from the judgment of conviction.

Izlar & Glaze, for appellant. W. St. Julien Jervey, for the State.

McIver, J. The appellant was indicted jointly with one Laura Smoak for adultery, the charge in the indictment being "that the said Daniel J. Carroll and Laura Smoak * * * did unlawfully and habitually have carnal intercourse with each other, he, the said Daniel J. Carroll, being then and there a married man, and she, the said Laura Smoak, then and there being unmarried, " etc. At the call of the case the solicitor announced that, the defendant Laura Smoak not having been arrested, he would proceed with the trial of Carroll. Counsel for appellant objected, unless both defendants were put on trial, the offense being joint, and the two being jointly indicted. The objection was overruled, and the court proceeded with the trial of appellant alone. It seems that a number of the citizens of St. Matthews, where appellant resided, impressed with the belief that he was practicing adultery with said Laura Smoak, assembled in public meeting, and passed resolutions, which are set out in the record, demanding that appellant leave the town of St. Matthews within a prescribed time, on pain of an indictment for adultery, and such further action as might be deemed necessary. These resolutions, signed by 41 citizens, were communicated to the appellant, who replied by letter, likewise set out in the record, in which he pledged himself to abandon, at once and forever, all connection with Laura Smoak. Among other evidence offered at the trial these resolutions were offered, and the appellant objected, and the objection was overruled by the court in these words: "Not on the ground that the facts stated in the resolutions would thereby be put in evidence, but because they contain a charge of adultery against the defendant, and defendant's reply could only be known when the precise nature ofthe charge appeared; and when the charge was in writing the rules of evidence ordinarily required the production of the writing. " The solicitor, however, seeming impressed by defendant's objection, did not then put the resolutions in evidence. At a subsequent stage of the case appellant's letter in reply to the resolutions was offered in evidence by the solicitor, which, upon objection on the part of the defense, was ruled admissible, the court saying: "In order to constitute duress, the party must be either under arrest, or some language must be used to induce him to believe that it would be better for him to confess, or he must be in such immediate danger of imprisonment — that being the ground of duress—that he is presumed in law not to be a free agent. Here there was no immediate danger of arrest, neither was the party under arrest. " What then occurred, as stated in the "case" as settled by the circuit judge, is as follows: "The letter was then put in evidence; whereupon counsel for defendant requested the solicitor to put in also the resolutions to which the letter was an answer, which was done; no objection made. " In the argument here the counsel for appellant, while very properly recognizing the fact that he is bound by the "case" as settled by the circuit judge, insisted, injustice to himself, that he is incorrectly represented as requesting that the resolutions be offered in evidence, and we can very well understand how this may be so. But as will be seen, under the view which we take, it makes no difference which version of what occurred is the correct one. At the close of the testimony the case was submitted to the jury under the charge of the circuit judge, and, a verdict of guilty having been rendered, defendant, upon the minutes, moved for a new trial and in arrest of judgment, which motions were refused, and the defendant was sentenced to pay a fine of $200, or be imprisoned in the state penitentiary at hard labor for the period of six months. Thereupon defendant appeals upon the several grounds set out in the record.

The first ground imputes error to the circuit judge in refusing to charge as follows: "That to establish the crime of adultery, where the parties are not charged as living together, the testimony must satisfy the jury beyond a reasonable doubt that the criminal intercourse was habitual; that is, frequent. Occasional acts will not be sufficient. " In response to this request the circuit judge said: "I charge you that is the law, except that I decline to charge you what ' habitual' is. I charge you that it is not occasional, but how frequently it must be committed to make it habitual I leave to your discretion. I am not prepared to say how often the act must have been committed, nor how nearly together those acts must occur, in order to constitute habitual carnal intercourse. That is for you. I charge you that it is not occasional, but habitual. With that modification I charge you that request. " From this statement it seems to us quite clear that the circuit judge did charge precisely as requested; that to constitute the offense charged the carnal intercourse must be habitual, —"that is, frequent. Occasional acts will not be sufficient. " He adopted the very language of the definition of the word "habitual, " as presented in the request, —that is, frequent, not occasional. The fact that he went on to say that he could not undertake to tell the jury how frequent the acts of carnal intercourse must be, or how near together they must occur in order to constitute habitual intercourse, was really no modification of the request, which was charged explicitly in the very language selected by the appellant.

The second and third grounds of appeal impute error to the circuit judge in declining to define the terms "habitual carnal intercourse, " as used in the statute, and leaving the interpretation of those terms to the jury. The language of the statute, as found in section 2589 of the General Statutes, is as follows: "Adultery is the living together and carnal intercourse with each other, or habitual carnal intercourse with each other, without living together, of a man and woman, when either is lawfully married to some other person. " Under this statute, adultery may be committed in either one of two ways: (1) Where a man and woman, one of whom is married to another person, live together in carnal intercourse; (2) where, not living together, they indulge in habitual carnal intercourse, —and the indictment in this case falls under the second head. It will be observed that the statute does not undertake to define either the word "habitual" or the word "carnal, " and their meaning must be determined by the common sense of mankind; and, in the absence of any statutory definition, it would be very difficult, if not absolutely impossible, to define, with any greater precision, the terms "habitual carnal intercourse" than was done by the circuit judge in this case, —that it must be frequent, and not occasional; but how frequent to make it habitual must be left to the common sense of the jury. What are the habits of a person must necessarily be a question of fact. For example, where the question is whether a person is habitually intemperate, or whether he is a person of temperate habits, is mainly a question of fact, and is not susceptible of being defined with precision as matter of...