State v. Holland

• Decision Date: 01 April 1912
• Citation: 145 S.W. 522,162 Mo.App. 678
• Parties: STATE OF MISSOURI, Respondent, v. E. E. HOLLAND, Appellant
• Court: Kansas Court of Appeals

145 S.W. 522

162 Mo.App. 678

STATE OF MISSOURI, Respondent, v. E. E. HOLLAND, Appellant

Court of Appeals of Missouri, Kansas City

April 1, 1912

Appeal from Jackson Criminal Court.--Hon. Ralph S. Latshaw, Judge.

REVERSED AND REMANDED.

Judgment reversed and cause remanded.

Stubbs & Stubbs for appellant.

Virgil Conkling and Henry L. Jost for respondent.

OPINION

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.L. 380; Hood v. The State, 56 Ind. 263.] An interesting discussion and review of the authorities will be found in these cases, citing among many others 3 Blackstone, 139, and Bacon's Abridgement, Mariage & 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 Am. & Eng. Ency. Law, 747; Bishop, Stat. Crimes, secs. 654a, 656, 657; 2 Wharton Crim. Law, secs. 1717-1719, 1721; State v. Hasty, 121 Iowa 507, 96 N.W. 1115; Bashford v. Wells, 78 Kan. 295, 96 P. 663.] 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, sec. 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, 56 Mo. 147, the information was against both the man and woman, and did not charge the woman to be married; nor did the proof show it. The contrary is to be inferred. In State v. Chandler, 132 Mo. 155, 33 S.W. 797, the offense is defined at pages 160-161 of the report, without including a necessity that the female must be a married woman. And so it was in State v. Bess, 20 Mo. 419, where the prosecution was against both parties. In State v. Coffee, 75 Mo.App. 88, a conviction of both parties was sustained by the St. Louis Court of Appeals, though the woman was unmarried.

It is thus seen that, under the rulings on this statute, an unmarried woman may be guilty of adultery if her illicit intercourse is with a married man. The statute means that if either party to the intercourse be married, both are guilty of adultery. No one would deny that proof by a complaining wife in an action for divorce, that her husband had had carnal connection with an unmarried woman, would sustain her charge of adultery. There is no reason to suppose that the Legislature meant to make any different definition of the act in a criminal prosecution. [Commonwealth v. Call, 21 Pick. 509.] One is public scandal and the other private; but each, in result, tending to the disorder and demoralization of society.

The judgment in the case was that defendant was guilty, and a year imprisonment in the county jail and a fine of $ 1000 was imposed as punishment. In this connection objection is made to the finding of the jury as shown by the verdict, which was returned into court in the following words: "We the jury, find the defendant, E. E. Holland, guilty of adultery as charged in the information, and assess his punishment at one year and $ 1000."

There are three particulars of insufficiency of this verdict suggested. One is that the jury have...