State v. Hicks

• Decision Date: 07 April 1913
• Citation: 155 S.W. 482,170 Mo. App. 183
• Parties: STATE v. HICKS et al.
• Court: Missouri Court of Appeals

155 S.W. 482

170 Mo. App. 183

STATE v. HICKS et al.

Springfield Court of Appeals. Missouri.

April 7, 1913.

1. CRIMINAL LAW (§ 877) — CODEFENDANTS — CONVICTION — SENTENCE.

Under Rev. St. 1909, § 5252, providing that, where several defendants are jointly tried and are convicted, their punishment must be assessed separately, a verdict convicting two defendants of adultery and assessing their punishment at $100 and 10 days in the county jail was improper, and the court should either refuse to accept it, or itself have assessed the punishment against each defendant.

2. INDICTMENT AND INFORMATION (§ 202) — AIDER BY VERDICT — ADULTERY.

Rev. St. 1909, § 4729, provides that every person who shall live in a state of open and notorious adultery and every man and woman, one or both of whom are married not to each other, who shall lewdly and lasciviously abide with each other, etc., shall be guilty of a misdemeanor. Held, that an indictment in two counts charging in the first that defendants on a specified day had then and there, and from that date continuously for nearly a year, "unlawfully, shamefully, openly, and notoriously lived and cohabited together in a state of open and notorious adultery, then and there habitually having sexual intercourse together," and that defendant H. was a married man and defendant M. an unmarried woman, and in the second count that defendants, not being married to each other, during the same time, did unlawfully, lewdly, and lasciviously abide and cohabit with each other, and did then and there have sexual intercourse, followed by an allegation that H. was a married man and M. an unmarried woman, sufficiently charged the offenses described in the statute as against objection first made after verdict.

3. CRIMINAL LAW (§ 970) — DEFECTS — DUPLICITY — MOTION IN ARREST.

An objection that an indictment is duplicitous cannot be first taken advantage of on a motion in arrest of judgment.

4. INDICTMENT AND INFORMATION (§ 132) — OFFENSES — JOINDER — ELECTION.

While offenses which are several, distinct, and independent cannot be joined, yet, where all the counts of an indictment relate to the same transaction, the prosecution is not bound to elect on which count it will proceed.

5. CRIMINAL LAW (§ 1167) — APPEAL — JOINDER OF OFFENSES — PREJUDICE.

Accused was not prejudiced by the joinder of counts alleging different offenses arising out of the same transaction, where only one of the counts was submitted to the jury.

6. ADULTERY (§ 11) — EVIDENCE — CIRCUMSTANCES.

Where adultery is to be established by circumstantial evidence, all surrounding circumstances are proper to be weighed by the jury, if they have any bearing on the ultimate fact.

7. LEWDNESS (§ 10) — EVIDENCE.

In a prosecution of a married man and an unmarried woman for living in a state of open and notorious adultery, evidence held to sustain a conviction.

Appeal from Circuit Court, Butler County; J. C. Sheppard, Judge.

George W. Hicks and Laura Maloy were convicted of living in adultery, and they appeal. Reversed and remanded with directions.

David W. Hill, of Poplar Bluff, for appellants. Almon Ing, of Poplar Bluff, for the State.

FARRINGTON, J.

Appellants were prosecuted and convicted in the Butler county circuit court upon an indictment under section 4729, R. S. 1909, the statute leveled against adultery.

The verdict of the jury was as follows: "We, the jury, find the defendants guilty as charged, and assess their punishment at one hundred dollars and ten days in the county jail." The judgment followed the form of the verdict. The verdict and judgment were erroneous. The statute (section 5252, R. S. 1909) plainly requires that, when several defendants are jointly tried, the punishment of each in case of conviction must be assessed separately. The court should either have refused to accept the verdict and suggested its being put in proper form, or, failing in this, should itself have assessed and declared the punishment which the jury by their defective verdict failed to do. State v. Gordon, 153 Mo. 576, 55 S. W. 76; State v. Thornhill, 174 Mo. loc. cit. 371, 74 S. W. 832; State v. Person, 234 Mo. loc. cit. 268, 136 S. W. 296. For this cause, the judgment must be reversed and the cause remanded, with directions to the trial court to bring the defendants before it, and, having done so, to proceed to assess and declare their punishment, and otherwise proceed in the cause as required by law. In the case of State v. Berry, 21 Mo. 504, there was a verdict against three defendants assessing a fine against them of $81 jointly. It was held that under the statute the circuit court could not have entered a judgment jointly against all three for the sum of $81, and that it would not have been proper to have collected that sum from one defendant in discharge of the entire judgment, nor to have collected that sum from each of the defendants separately, and the Supreme Court reversed the judgment and remanded the cause for a new trial. Eighty-one dollars was not the minimum fine which could have been assessed in that case. Now, in the case before us, a fine of $100 and 10 days' imprisonment was not the minimum punishment which could have been assessed; hence there would be reason for contending that the order in this case should likewise be "Reversed and remanded for a new trial." But in the late case of State v. Person, supra, a different rule of action is adhered to, and the case of State v. Berry is not cited. The jury in the Person Case found the defendants guilty of burglary in the second degree, and assessed their punishment at imprisonment in the penitentiary for the term of five years. The minimum punishment for second degree burglary is two years' imprisonment. The Supreme Court merely remanded the cause, with directions to the circuit court to cure the defective verdict by calling the defendants before it and declaring their punishment upon the verdict of guilty and sentence them separately; and what that sentence should be was left to the circuit court, nothing being said in the opinion as to that question.

Other contentions of vital importance are urged in appellants' brief and require careful consideration.

Does the indictment charge an offense? There are two counts. The first charges that these appellants "on or about the first day of February, 1910, at the county of Butler and state of Missouri, did then and there and from that day continuously until the twentieth day of January, 1911, in the county and state aforesaid, unlawfully, shamefully, openly, and notoriously live and cohabit together in a state of open and notorious adultery, then and there habitually having sexual intercourse together," and then charging that George W. Hicks was a married man and Laura Maloy an unmarried woman. The second count charges that defendants, not being married to each other, during the same time mentioned in the first count did "unlawfully, lewdly, and lasciviously abide and cohabit with each other, and then and there have sexual intercourse together," followed by the allegation that George W. Hicks was a married man and Laura Maloy an unmarried woman. The statute (section 4729, R. S. 1909) is said to embrace five offenses (State v. Chandler, 132 Mo. loc. cit. 160, 33 S. W. 797, 53 Am. St. Rep. 483; State v. Sekrit, 130 Mo. loc. cit. 405, 32 S. W. 977; State v. Nicholas, 124 Mo. App. loc. cit. 332, 101 S. W. 618), the first of which is stated by Sherwood, J., to be as follows: "Living in a state of open and notorious adultery by two persons of opposite sexes, one or both of whom are married, but not to each other." In the case of State v. Sekrit it was held that an indictment for adultery must, in order to be valid, bring the accused within all the material words of the statute, and nothing must be left to intendment, citing State v. Hayward, 83 Mo. 299. In the Sekrit Case the only words used were, "unlawfully, shamefully and habitually having sexual intercourse together," followed by the charge that both parties were married, but not to each other. Hence there was obviously an insufficiency of language to charge an offense under the first subdivision of the adultery statute. But in the case before us all the material words were used. The general rule is that it is sufficient in an indictment charging the commission of an offense created by statute to follow the language of the statute. State v. Newman, 152 Mo. App. loc. cit. 146, 132 S. W. 753. And in determining the sufficiency of indictments for misdemeanors under statutes designed to promote and preserve morals, good order, and decency, the matter for ascertainment is whether the indictment substantially charges an offense aimed at by the statute with sufficient particularity to apprise defendant of the act with which he is charged, and to serve as a bar to a further prosecution of the same offense, and that unnecessary technicalities or refinements of reasoning will not be indulged. State v. Rouelle, 137 Mo. App. 620, 119 S. W. 55. By the common law of England adultery was not punishable as a crime; it was made a misdemeanor by our statute. State v. Holland, 162 Mo. App. 678, 145 S. W. 522. The fact that one or both of the parties are married, but not to each other, is a material fact constituting an element of the offense (State v. Hillman, 128 Mo. App. 172, 106 S. W. 603),...