State v. Gibson

Citation19 S.W. 980,111 Mo. 92
PartiesSTATE v. GIBSON.
Decision Date20 June 1892
CourtUnited States State Supreme Court of Missouri

1. Cohabiting with a female for a single act of sexual intercourse is sufficient to constitute "concubinage," within Rev. St. § 3484, inhibiting abduction of a female under 18 years of age for the purpose of prostitution or concubinage. SHERWOOD, C. J., and BRACE and GANTT, JJ., dissenting.

2. An indictment charging three men with abducting a female for the purpose of concubinage, by having intercourse with them, charges no offense, as she could not be the concubine of all three. Per SHERWOOD, C. J., and BRACE and GANTT, JJ.

3. On a trial for taking a female away from her father for the purpose of concubinage, the female testified that she went to the house of defendant's father, L., because he, L., had promised to take her away to school; that on her arrival L. was not at home, and she asked defendant, W., who was there with his brother, to take her away; and he told her that he had not agreed to, but that it was his father who had. That night defendant, at his father's instance, took the girl to a relative's, and on the way they had sexual intercourse. Some days afterwards he was sent by his father to take her to another state, where he left her at an hotel, but no further intercourse was attempted. Afterwards the father and another son went where she was, and had intercourse with her. Held, that there was no evidence of a taking away for the purpose of concubinage. THOMAS, J., dissenting.

4. The fact that some five weeks afterwards, when the female returned to the home of defendant's father, defendant attempted to conceal her from her father, could have no effect towards showing his guilt in the original taking. Per SHERWOOD, C. J., and BRACE and GANTT, JJ.

5. The fact that the female taken for concubinage be not chaste does not affect the guilt of the person taking her. SHERWOOD, C. J., dissenting.

In bank. Appeal from circuit court, Harrison county; CHARLES H. S. GOODMAN, Judge.

William Gibson was convicted of abduction for the purpose of concubinage, and appeals. Reversed.

McCullough & Peery, J. W. Peery, J. C. Wilson, and J. M. Sallee, for appellant. John M. Wood, Atty. Gen., for respondent.

SHERWOOD, C. J.

The second count in the indictment in this cause is as follows "And the grand jurors aforesaid, upon their oaths aforesaid, do further present and charge that Larkin A. Gibson, William Gibson, and James Gibson, on the 7th day of April, 1889, at the said county of Harrison, one Ada E. Dyche, a female under the age of eighteen years, to wit, of the age of fifteen years, unlawfully and feloniously did take from one William Dyche, her father, he, the said William Dyche, then and there having the legal charge of the person of said Ada E. Dyche, without the consent and against the will of the said William Dyche, for the purpose of concubinage, by having illicit sexual intercourse with him, the said Larkin A. Gibson, and with him, the said William Gibson, and with him, the said James Gibson, and with divers other men whose names are to the grand jurors aforesaid unknown, against the peace and dignity of the state." This indictment is bottomed on section 3484, Rev. St. 1889, which is as follows: "Every person who shall take away any female under the age of eighteen years from her father, mother, guardian, or other person having the legal charge of her person, either for the purpose of prostitution or concubinage, and any father, mother, guardian, or other person having the legal charge of her person, who shall consent to the same, shall, upon conviction thereof, be punished by imprisonment in the penitentiary not exceeding five years." Upon trial had, the defendant was found guilty, and his punishment assessed at imprisonment in the penitentiary for the term of four years.

The second instruction given at the instance of the state was the following: "The jury are instructed that by the word `concubinage,' as used in the indictment and instructions, is meant the act or practice of a man cohabiting in sexual intercourse with a woman to whom he is not married. If the jury should believe from the evidence that the defendant, either alone or in connection with another, did take the witness, Ada E. Dyche, away from her father, without his consent, and that Ada E. Dyche was at the time a female under the age of eighteen years, for the purpose of cohabiting with her as man and woman in sexual intercourse, either for himself or for another, for any length of time, even for a single act of sexual intercourse, without the authority of a marriage, it would be sufficient to constitute the offense charged in the second count of the indictment."

1. This instruction necessitates the determination of the meaning of the word "concubinage." Under the provisions of our statute, "words and phrases shall be taken in their plain or ordinary and usual sense, but technical words and phrases, having a peculiar and appropriate meaning in law, shall be understood according to their technical import." 2 Rev. St. 1889, § 6570. If we take it the word employed is to be taken in its ordinary sense, in the popular acceptation of the term, we must turn to the standards of our language in order to ascertain the accepted meaning of the term. When we do this, we find that "concubinage" is defined by Webster to be "the cohabiting of a man and a woman who are not legally married; the state of being a concubine." And in turning to the word "cohabit," we find that one of its prominent meanings is "to dwell or live together as husband and wife." And Webster also defines "concubine" as "a woman who cohabits with a man without being his wife." On turning to the law dictionaries, we find "concubinage" defined, as "a species of loose, informal marriage, which took place among the ancients, and which is yet in use in some countries." Black, Law Dict.; Whart. Law Dict.; Bouv. Law Dict. It is well enough, in this connection, to place in juxtaposition and in sharp contrast with the word "concubinage" the other word the section in question employs, "prostitution," which is defined by Webster: "The act or practice of prostituting or offering the body to an indiscriminate intercourse with men; common lewdness of a female." And in the legal authorities the term is defined as "the common lewdness of a woman for gain; the act of permitting a common and indiscriminate sexual intercourse for hire." 2 Bouv. Law Dict.; Com. v. Cook, 12 Metc. (Mass.) 97. Thus contrasted, it is easy to see that the two words "concubinage" and "prostitution" have, and were intended to have, a widely different meaning. To hold otherwise would be to say that the two words meant the same thing, and that therefore the legislature, in framing the section under discussion, employed a useless and meaningless word, which is a supposition not to be indulged, as abundant authorities show.

The section in question levels its denunciations aganst two separate and distinct offenses, — offenses which, therefore, cannot be joined in one count, but, if charged, according to a familiar rule, must be charged in separate counts. This view finds illustration in the state of Kansas, having a section precisely like ours, barring the portion marked with brackets; and there it was held that an indictment which joined the two offenses, — a taking for the purpose of prostitution and concubinage, — was, by reason of such joinder, fatally defective, HORTON, C. J., remarking "If the appellant took the female away for the purpose of prostitution, he did so for the purpose of devoting her to infamous purposes; that is, of offering her body to indiscriminate intercourse with men. If he took her away for concubinage only, then his purpose was to cohabit with her in sexual commerce without the authority of law or a legal marriage." State v. Goodwin, 33 Kan. 538, 6 Pac. Rep. 899. This ruling entirely coincides with definitions already quoted. The state of Illinois possesses a statute substantially identical with our own, and the practice there is, when charging the offenses of taking for the purposes of concubinage and of taking for the purpose of prostitution, to charge each of these offenses in a separate count. Slocum v. People, 90 Ill. 274; Henderson v. People, 124 Ill. 607, 17 N. E. Rep. 68. In the latter case cited it is said that the words in question "are in general use, and we have no doubt they were used by the legislature in their general or popular signification." But every temporary absenting of a girl from the house of her parents, though it be at the instance of the accused, and for the purpose of sexual intercourse with him, does not constitute the act a taking within the purview of the statute. The taking, in order to be a taking under the statutory prohibitions, must be for one of two purposes, — either for the purpose of concubinage, or else for the purpose of prostitution, — and not for a mere momentary gratification; or, as was interrogatively said by CROMPTON, J., where the offense was based on a similar statute: "If a man make a sign to a girl in her father's cottage, and she comes out and goes away with him for a short time, would that be within the section?" Reg. v. Timmins, 8 Cox, Crim. Cas. 401. To hold otherwise would be to do violence to the language in question, and create an offense unknown to the law. See People v. Parshall, 6 Parker, Crim. R. 129, in which case the statute of New York then passed upon is substantially like our own. Seduction or attempted seduction is not within the prohibitions of the section. Indeed, the sexual act is not at all necessary to the commission of the crime under discussion, for the abduction may be done by a woman as well as a man. "The gravamen of the offense is the purpose or intent with which the enticing and abduction is done," (Henderson v. People and Slocum v. People, supra;) and the...

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