State v. Gibson
| Decision Date | 20 June 1892 |
| Citation | 19 S.W. 980,111 Mo. 92 |
| Parties | The State v. Gibson, Appellant |
| Court | Missouri Supreme Court |
Appeal from Harrison Circuit Court. -- Hon. C. H. S. Goodman, Judge.
Reversed.
J. W Peery, J. C. Wilson, J. M. Sallee and McCullough & Peery for appellant.
(1) The court should have sustained the demurrer to the evidence there being no evidence of conspiracy, and the witness, Ada E. Dyche, testifying that she requested the appellant to take her away, and that he never at any time solicited her to leave her father's home; he was guilty of no crime in taking her, and the mere act of illicit intercourse on the road that night cannot make that a crime which would not otherwise be. If she came to him and requested him to take her away for a legitimate purpose, as she insists she did, he did not commit a crime in receiving her, providing he had not previously attempted to induce her to go with him. State v. Gibson, 108 Mo. 575; Kelley's Criminal Law, sec 517; 2 Archbold on Criminal Practice & Pleading, 149; Carpenter v. People, 8 Barb. 603. There must be enticement by the defendant to constitute this offense. Lewis v. People, 37 Mich. 518; State v. Crawford, 34 Iowa 40; Wilson v. State, 58 Ga. 328; People v. Plath, 100 N.Y. 590. (2) The court erred in excluding evidence offered by defendant of specific acts of unchastity with other men prior to the alleged abduction. The statute was intended to protect chaste and virtuous girls, and not those who are already prostitutes. Hence, if this girl had been leading a life of shame prior to this time she could not be said to have been drawn aside from the path of virtue by the defendant. State v. Patterson, 88 Mo. 88; State v. Wheeler, 94 Mo. 252; State v. Primm, 98 Mo. 368. (3) The second instruction given for the state was erroneous. (4) The second count of this indictment is bad, because: First, it charges three men with taking away a female for the purpose of concubinage, by having illicit intercourse with them and each of them, and divers other men to the jurors unknown; second, it fails to allege that the purpose or intent with which she was taken was felonious, or that the act was done with a felonious intent or purpose; third, it fails to allege that the purpose of defendant was to cohabit with her in sexual commerce, without the authority of law or a legal marriage. (5) The second count contains not a single allegation descriptive of, or which could apply to, the offense of abduction for the purpose of concubinage, and, hence, the judgment should have been arrested for that reason. State v. Goodwin, 33 Kan. 538; Osborn v. State, 52 Ind. 526; 1 Bouvier's Law Dictionary, p. 353; 2 Bouvier's Law Dictionary, 481; Bishop on Criminal Procedure [2 Ed.] secs. 482, 483, 485, 490.
John M. Wood, Attorney General, for the State.
(1) The evidence tended to show that the defendant and his father and brother had combined and entered into a common undertaking to take away Ada Dyche from her father for the purpose of concubinage, and that, in pursuance of such combination and common undertaking, they did take her away for that purpose. It was not necessary that the declarations and conduct of the father and brother should have been in the presence and hearing of the defendant in order to be admissible against him. State v. Walker, 98 Mo. 95; Anarchist case, 12 N.E. 980; Card v. State, 9 N.E. 591. (2) The evidence in this case was sufficient to warrant a conviction, and the demurrer thereto was properly overruled. State v. Round, 82 Mo. 679; State v. Feasel, 74 Mo. 524. (3) The second instruction for the state properly defined the word "concubinage." (4) The indictment follows the language of the statute, and is sufficient. Kelley's Criminal Law, sec. 515.
OPINION
In Banc.
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 seventh 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, Revised Statutes, 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:
I. 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 Revised Statutes, 1889, sec. 6570.
If, as 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's Law Dictionary; Wharton's Law Dictionary; Bouvier's Law Dictionary.
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: 2 Bouvier's Law Dictionary; Com. v. Cook, 12 Met. 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 mean 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 against 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: State v. Goodwin, 33 Kan. 538, 6 P 899. This ruling entirely coincides with...
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