State v. Lawrence
Citation | 27 N.W. 126,19 Neb. 307 |
Parties | THE STATE OF NEBRASKA v. PETER J. LAWRENCE |
Decision Date | 11 March 1886 |
Court | Supreme Court of Nebraska |
BILL OF EXCEPTIONS from Platte county, POST, J., presiding, filed by district attorney under the provisions of section 515 criminal code.
William Marshall, District Attorney, for the state.
McAllister Brothers and McFarland & Cowdry, contra.
The defendant was indicted under section 204 of the criminal code for the crime of incest. The indictment contained two counts. The first count charged the crime to have been committed on the first day of April, 1884. The second alleges the date of cohabitation to be on the 1st day of April, 1882, and on divers other days and times between that day and the first day of April, 1884.
On the trial the court, on motion of the defendant, required the prosecutor to elect as to which count of the indictment he would proceed upon. This ruling was excepted to and is assigned as error by the district attorney.
At the close of the evidence on the part of the prosecution a motion was made by the defendant to dismiss the case for the reason that the evidence did not sustain the charge as made in the indictment. This motion was sustained by the court and the cause dismissed without a verdict. To this the district attorney also excepted, and now brings the case into this court on error under the provisions of section 515 et seq. of the criminal code.
We think it is quite true as claimed by plaintiff in error that the first count in the indictment contains sufficient to charge a crime under the section above alluded to, for, as said in Desty's Am. Crim. Law, sec. 88b, "if the parties for a single day live together in adulterous intercourse, intending its continuance, the offense is complete." It is equally true that the second count charges a crime, for the offense is a continuing one and may be laid with a continuendo. State v. Way, 5 Neb. 283.
The objection to this indictment is, that the date fixed by the first count, to-wit, the first day of April, 1884, is not included in the time stated in the second count, to-wit, on the first day of April, 1882, and on divers other days and times between that date and the first day of April 1884; thus excluding the last date. It cannot, therefore, be said that these two counts charge the same offense, but in different forms to meet the evidence, which is permissible in criminal practice (1 Bishop on Criminal Procedure, § 420), but the dates being different, and the first count not being included in the second, as to time, it may be said that each count charges separate and distinct felonies which should not be joined in the same indictment, and for that reason we cannot say the court erred in compelling the election. Especially is this true since it is a matter largely within the discretion of the trial court. Id., § 454, and cases cited in note. Bailey v. The State, 4 Ohio St. 440, Moore's (Ills.) Crim. Law, § 800, and cases there cited.
The remaining question is one of much more importance and in which, to the mind of the writer, there is much difficulty. It is a fundamental rule for the construction of statutes that the several parts of the law should be so construed as to give effect to the legislative intent, and to give some force and effect to every section and part of the law. With this rule before us we must adopt the views of plaintiff in error as to the construction of the section of the criminal law referred to, or ignore it entirely as an unmeaning section. We quote sections 202, 203, and 204 of the criminal code:
The evidence introduced on the trial, together with the motion of defendant to dismiss the case and the ruling of the court, are thus stated in the abstract:
By the foregoing it will be seen that while the witness and daughter resided with the defendant it was not in any other capacity, so far as outward manifestations and representations were concerned, than as a member of his family, and not as his wife, he having a wife residing with him at that time.
The contention of the defendant is, that the meaning of the word "cohabit," in section 204, is that of living together as husband and wife, and to this view the district court gave its adherence in deciding the motion to dismiss. A number of cases are cited, and such cases are numerous wherein it is so held by very respectable courts under the facts and circumstances before them. And indeed we think that the great majority of courts and text writers have so held; and we think when the word is used in its strict legal sense that is its proper...
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