State v. Cole
| Decision Date | 20 July 1918 |
| Citation | 174 P. 131,31 Idaho 603 |
| Parties | STATE, Respondent, v. JOSEPH T. COLE and MINNIE M. RAMBO, Appellants |
| Court | Idaho Supreme Court |
CRIMINAL LAW-APPEAL-TRANSCRIPT-SERVICE-DISMISSAL-LEWD COHABITATION-COMPLAINT-SUFFICIENCY OF.
1. Where the transcript on appeal in a criminal case contains no showing that it was ever served on the attorney general the appeal is subject to dismissal upon motion.
2. A criminal complaint must allege every element necessary to constitute the offense charged, or it is demurrable on the ground that it does not state facts sufficient to constitute a public offense.
3. The venue of an offense must be laid in the complaint, indictment or information.
4. Where it is sought to charge a divorced person with the crime of lewd cohabitation upon the theory that a subsequent marriage of such person is void by reason of having been consummated within the six months' inhibited period provided by Revised Codes, sec. 2617, the complaint must negative the fact that the subsequent husband or wife is not the divorced spouse.
5. A complaint charging lewd cohabitation is insufficient where it does not allege either that the defendants lived and cohabited together as man and wife or that they lewdly and notoriously associated together, and a complaint under the former clause which merely alleges that the parties openly lived together as man and wife states no offense,-the gist of such offense consisting of their cohabiting together.
[As to what constitutes living in open and notorious adultery, see note in 113 Am.St. 271]
APPEAL from the District Court of the Seventh Judicial District, for Adams County. Hon. Isaac F. Smith, Judge.
Prosecution for lewd cohabitation. Judgment of conviction reversed.
Judgment reversed with instructions.
Stinson & McCallum, for Appellants.
B. J Dillon, Prosecuting Attorney for Adams County, for Respondent.
Counsel cite no authorities on points decided.
--Appellants, Joseph T. Cole and Minnie M. Rambo, were prosecuted in Adams county for the crime of lewd cohabitation. They were tried by a jury and convicted. This appeal is from the judgment of conviction.
The transcript contains no evidence that it was ever served on the attorney general and the rule is well settled in this court that where on appeal in a criminal case the transcript is not served upon the attorney general, the appeal is subject to dismissal upon motion, but none was made in this case. (State v. Miles, 11 Idaho 784, 83 P. 697; Corker v. Elmore County, 11 Idaho 787, 84 P. 509; State v. Squires, 15 Idaho 327, 97 P. 411; State v. Burgy, 22 Idaho 586, 126 P. 779.)
The allegations of the complaint so far as material to our discussion are as follows:
"That at Adams county, Idaho, and continuously from day to day from on or about the 22d day of February, 1917, to the 30th day of April, 1917, a misdemeanor was committed by the above-named defendants as follows, to wit: That on or about the 21st day of February, 1917, the said defendants, Joseph T. Cole and Minnie M. Rambo, being then and there, did, for the purpose of avoiding and defrauding the laws of the state of Idaho, go into the state of Oregon to the town of Vale and purposely and with intent to evade and defraud the laws of the state of Idaho, procure a marriage license and go through the ceremony of what purported to be a marriage; that the said defendant Joseph T. Cole had been divorced from his lawful wife by a decree rendered in the district court of the 7th judicial district of Idaho, for Adams county, within six months prior to the said pretended marriage upon the said 21st day of February, to wit, on the 14th day of February, 1917; that the said defendants did, within seven days after the granting of said divorce, and knowing that they could not legally marry within the state of Idaho for a period of six months, and for the purpose of evading the laws of the state of Idaho, and for the purpose of defrauding the people of the said state of Idaho, procured the said marriage ceremony to be performed in the state of Oregon, as aforesaid; that the said pretended marriage was equally illegal and void in both the said states of Idaho and Oregon, and that the said defendants, Joseph T. Cole and Minnie M. Rambo, did immediately return to the said Adams county, Idaho, and ever since have openly lived together as man and wife without having been legally married at all; thus the said defendants, Joseph T. Cole and Minnie M. Rambo became guilty of the crime of lewd cohabitation."
Before entering their plea of not guilty, appellants demurred to the complaint, the first ground of demurrer being that the facts stated did not...
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