State v. Clawson

• Decision Date: 27 March 1888
• Citation: 30 Mo.App. 139
• Parties: STATE OF MISSOURI, Respondent, v. HENRY C. CLAWSON, Appellant.
• Court: Missouri Court of Appeals

30 Mo.App. 139

STATE OF MISSOURI, Respondent, v. HENRY C. CLAWSON, Appellant.

Court of Appeals of Missouri, St. Louis.

March 27, 1888

APPEAL from the Knox Circuit Court, HON. BEN. E. TURNER, Judge.

Reversed and remanded.

HOLLISTER & ANDERSON, for the appellant: That the clauses set out separate offences, see State v. West, 84 Mo. 440 and State v. Dameron, 8 Mo. 494. The indictment has undertaken to charge two distinct and separate offences in 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 renders the indictment bad. State v. Hayes, 24 Mo. 358; State v McCracken, 20 Mo. 411. Then the indictment does not charge the defendant with any specific act. State v. Dameron, 8 Mo. 494. Occasional illicit intercourse will not constitute the offence. They must reside together publicly, in the face of society, as if the conjugal relation existed between them, and the illicit intercourse must be habitual. State v. Crowner, 56 Mo. 150; Wright v. State, 5 Black 358; Searls v. People, 13 Ill. 597; State v. Gartrell, 14 Ind. 280; State v. Marvin, 12 Iowa 499; Hinson v. State, 7 Mo. 244; Dameron v. State, 8 Mo. 494; Miner v. People, 58 Ill. 59; People v. Gales, 46 Cal. 52; Carrotti v. State, 42 Miss. 334; Smith v. State, 39 Ala. 554. So one act is not sufficient. Collins v. State, 14 Ala. 608; Richardson v. State, 39 Tex. 346. There must be both lewd and lascivious intercourse, and a living together of the parties as husband and wife live together, to constitute the offence. Jones v. Commonwealth, 80 Va. 18; Scott v. Commonwealth, 77 Va. 346; Searls v. People, 13 Ill. 597. The state must show they lived together as man and wife. State v. West, 84 Mo. 440; Granberry v. State, 61 Miss. 440. The state had not proved the venue. There is no evidence in this record that this crime was committed in Knox county. State v. Burns, 48 Mo. 438.

O. D. JONES, for the respondent: We find no assignment of errors " distinctly and separately alleged" in appellant's brief--no error in which to join. Rule 18, this court; Rev. Stat., sec. 3764; Rannells v. Flynn, 44 Mo. 604; Miller v. Folinsbee, 59 Mo. 183. The indictment is sufficient--more than is necessary, but the material allegations are there. State v. West, 84 Mo. 440. The " abiding and cohabiting" is the gist of the offence. This was in Knox county. State v. Burns, 48 Mo. 438. Defendant resides in Knox county. " " " " When the fact of adultery is alleged to have been committed within a limited period of time, it is not necessary that the evidence be confined to that period; but proof of acts anterior to the time alleged may be adduced in explanation of other acts within that period. Thus, when the statute of limitations was pleaded, the plaintiff was permitted to begin with proof of acts of adultery, committed more than six years preceding, as explanatory of acts of indecent familiarity within the time alleged. 2 Greenlf. on Evid., sec. 40. Evidence is admissible of improper familiarity and adultery between the parties, both before and after the commission of the offence charged, although it proves other and distinct offences. 1 Am. & Eng. Encyc. of Law, title, adultery, p. 214, sub-title, " evidence." And, therefore, it has been held that general cohabitation excluded the necessity of proof of particular acts. 2 Greenlf. on Evid., sec. 41.

OPINION

ROMBAUER P. J.

The defendant was indicted and convicted of an offence under section 1541, Revised Statutes, and fined five hundred dollars, from which sentence he appeals.

We are asked to affirm the judgment because the defendant's brief filed in this court does not contain any distinct assignment of errors. The statute and rules of the court on that subject have no application to criminal cases, in which it is the duty of the court, upon return of the appeal, to render judgment upon the record before it, regardless of the fact of an assignment or joinder in error. Rev. Stat., sec. 1993; State v. Heffernan, 20 Mo.App. 327; State v. Pfaff, 20 Mo.App. 335.

The indictment was in the following words:

" State of Missouri, )

) ss.

County of Knox. )

The grand jurors duly empaneled, sworn and charged to inquire within and for the body of the county of Knox and state of Missouri, upon their oaths aforesaid, present and charge that one Henry C. Clawson, at the said county of Knox aforesaid, on the first day of June, A. D., 1887, and for the space of nine months next prior thereto, he then and now being an unmarried man, did then and there, and from that day, to-wit, from September the first, A. D., 1886, until June 1, 1887, in said county aforesaid, unlawfully, shamefully, openly, lewdly, lasciviously, and notoriously live, abide, and cohabit with one Bulah R. B. Goodwin, she being then and there a married woman, in a state of open and notorious adultery and they then and there habitually having sexual intercourse together, she then and there having a husband living, and against the statute in such cases made and provided, and against the peace and dignity of the state of Missouri.

A true bill. A. G. BOSTICK, Foreman,

O. D. JONES, Special Pros. Att'y."

The defendant pleaded not guilty. No motion to quash the indictment is found in the record, but the defendant, both in his motion for new trial and motion in arrest, complains that the indictment charges three separate and distinct offences in one count.

This exception is not tenable. The indictment charges substantially but one offence although it contains several specifications. That was the view taken of the same statute in State v. Bess, 20 Mo. 419, where it was held that an indictment under this section was erroneously quashed if any of the specifications are sufficiently charged in the indictment. The indictment would not be bad even if it charged several offences in the same count, if such offences are the same, defined by the same section of the statute, and punishable in the same manner. State v. Pittman, 76 Mo. 56; State v. Klein, 78 Mo. 627; State v. McAdoo, 80 Mo. 216.

The decisions in this state hold that an indictment is sufficient, though it does not follow the language of the statute, if it uses substantially the words of the statute, or words equivalent in meaning. State v. West, 21 Mo App. 309; State v. Ware, 62 Mo. 597; State v. Watson, 65 Mo. 115. These suggestions dispose of all the objections that are urged against the legal validity of the indictment.

Upon the trial of the cause it appeared that the woman with whom the offence is charged to have been committed, and her husband, lived at the house of the defendant as servants, in the year 1882, about five years prior to the alleged commission of the offence charged in the indictment, and thereafter left his house and were absent three years and more.

A witness for the state, one Howerton, was put upon the stand and asked whether, in the year 1882, he had not seen...