State v. Holland

• Decision Date: 01 April 1912
• Parties: STATE v. HOLLAND.
• Court: Missouri Court of Appeals

145 S.W. 522

STATE v. HOLLAND.

Kansas City Court of Appeals. Missouri.

April 1, 1912.

1. ADULTERY (§ 1)—WHAT CONSTITUTES.

Adultery, as defined by the common law at the time of the colonization of the United States, is sexual connection between a man and a woman, one of whom is lawfully married to a third person; and the offense is the same whether the married person in the adulterous connection is a man or a woman.

2. ADULTERY (§ 1)—UNLAWFUL COHABITATION—STATUTORY PROVISIONS.

Under Rev. St. 1909, § 4729, which makes the living in a state of open and notorious adultery a misdemeanor, a married man so living with an unmarried woman may be found guilty, since, if either of the parties is married, both are guilty of the offense.

3. ADULTERY (§ 1)—OPEN AND NOTORIOUS ADULTERY.

Under Rev. St. 1909, § 4729, which declares that every person who shall live in a state of open and notorious adultery shall on conviction be adjudged guilty of a misdemeanor, proof of the immoral act of adultery alone will not support a conviction, the law being aimed against scandal to society; and, to make out the offense, it is necessary to show that one of the parties was married.

4. CRIMINAL LAW (§ 882)—TRIAL—SPECIAL VERDICT — SUFFICIENCY—"AS CHARGED IN THE INFORMATION."

In a prosecution under Rev. St. 1909, § 4729, charging defendant with unlawfully living and cohabiting with ___ in a state of open and notorious adultery, they not being married to each other, but defendant being a married man, a special verdict that defendant was "guilty as charged in the information, and assess his punishment at one year and $1,000," but failing to include the essential fact that defendant was a married man, was insufficient; and the defect was not cured by the use of the words "as charged in the information," since, where there is a special finding of a fact, those words mean as that fact was charged.

Appeal from Criminal Court, Jackson County; Ralph S. Latshaw, Judge.

E. E. Holland was convicted of unlawful cohabitation, and he appeals. Reversed and remanded.

Stubbs & Stubbs, of Kansas City, for appellant. Virgil Conkling, Pros. Atty., and Henry L. Jost, Asst. Pros. Atty., both of Kansas City, for the State.

ELLISON, J.

Defendant was prosecuted in the criminal court of Jackson county by information of the prosecuting attorney, charging him with unlawfully living and cohabiting with Mary C. Mayers, alias Richter, in a state of open and notorious adultery; they not being married to each other, but defendant being a married man. It was not charged, nor was it proved, that Mary Mayers was a married woman. Defendant insists that to make out the offense of adultery the woman must be a married woman. To sustain this position his counsel has given the court the benefit of an able argument and an elaborate brief. We have, however, concluded that the point cannot be sustained.

The common law seemed to regard the name of the offense as characterizing the act, and so, to be adultery, the act must be such an one as may adulterate the blood of the family. The pure blood of the family is the mixture of the blood of the man and wife. Spurious blood can only be introduced into the family by the act of the wife. Hence adultery could only be committed by sexual intercourse in which a married woman took part. State v. Lash, 16 N. J. Law, 380, 32 Am. Dec. 397; Hood v. State, 56 Ind. 263, 26 Am. Rep. 21. An interesting discussion and review of the authorities will be found in these cases, citing among many others 3 Blackstone, 139, and Bacon's Abridgment (Marriage & Divorce) 569.

But the ecclesiastical law had regard to more than the adulteration of the blood by the introduction of spurious issue into the family. It considered the unhappiness and demoralization in the family by breach of the marriage vows and extended the meaning of adultery to sexual connection by a man and woman, one of whom is married to a third person, the married man being guilty, though the woman was single. 1 Amer. & Eng. Ency. of Law, 747; Bishop, Stat. Crimes, §§ 654a, 656, 657; 2 Wharton, Crim. Law, §§ 1717-1719, 1721; State v. Hasty, 121 Iowa, 507, 96 N. W. 1115; Bashford v. Wells, 78 Kan. 295, 96 Pac. 663, 18 L. R. A. (N. S.) 580, 16 Ann. Cas. 310. It is true that the common law of England was adopted by our statute, and by that law a married woman was necessary to the crime of adultery. But the canon law changed this by substituting a more unrestricted definition, and, as thus changed, it was brought to this country by the colonists. "Adultery, according to the definition thus established, is sexual connection between a man and a woman, one of whom is lawfully married to a third person; and the offense is the same whether the married person in the adulterous connection is a man or a woman. The Roman law being in this respect superseded, this definition was accepted by every Christian state at the time of the colonization of America; and is no doubt part of the common law brought with them by the colonists of all Christian nationalities. That it corresponds with a sound judicial philosophy is illustrated by the fact that it is incorporated in the codes of the principal continental European states." 2 Wharton's Crim. Law, § 1719.

By the common law of England adultery was not punishable as a crime. It has been made punishable in most of the American states, not as a common-law offense, for, as just said, it was not an offense under that law, but in response to the moral sense, which finds expression in the canon law. It is in that sense that it is made punishable by our statute, and in that sense ought the word to be defined and interpreted. An examination of the cases in this state leaves the question somewhat embarrassed. Thus in slander it has been ruled that an unmarried woman cannot commit adultery. Adams v. Hannon, 3 Mo. 222; Christal v. Craig, 80 Mo. 367. But in criminal actions under this statute it has not been deemed essential to a successful prosecution that the woman should have been married. In State v. Crowner, ...