State v. Meyer
| Decision Date | 09 June 1924 |
| Docket Number | 24299 |
| Court | Mississippi Supreme Court |
| Parties | STATE v. MEYER et al. [*] |
Suggestion of Error Overruled Sept. 15, 1924.
APPEAL from circuit court of Adams county, HON. R. L. CORBAN, Judge.
Fritz Meyer and another were indicted for an offense and from an order sustaining a demurrer to the indictment, the state appeals. Reversed and remanded.
Judgment reversed and remanded. Suggestion of error overruled.
Harry M. Bryan, Assistant Attorney-General, and C. H. Brandon, for the state.
Appellees were indicted in the circuit court of Adams county on the charge of unlawful cohabitation. They demurred to the indictment and from the court's judgment sustaining the demurrer the state prosecutes this appeal. The indictment was drawn under section 1029 of the Code of 1906, Hemingway's Code, section 754.
Appellees set up several grounds of demurrer, the principal ones being: (1) That the indictment fails to charge and inform the defendants whether the unlawful cohabitation charged in said indictment was in adultery or fornication; (2) that the indictment fails to set out the period of time during which the unlawful cohabitation occurred; (3) (a) that the indictment fails to allege that the parties "then and there" committed the acts complained of, and (b) that the habitual sexual intercourse was "unlawful."
Tynes v. State, 93 Miss. 119, 46 So. 535, is decisive of the case. A very careful comparison of the indictment in the Tynes case with that of the case at bar shows that they are practically identical. In fact, with the exception of a few immaterial words they are exact duplicates. If anything, the indictment here is more complete.
The above case squarely puts at rest appellees' contention that the word "unlawfully" was absolutely necessary in the charge of habitual intercourse. To fully dispose of the group of appellees' grounds, mentioned above under (3) see Will Turner v. State, decided by Division A, May 19, 1924, in which appellant very strenuously urged reversal of a judgment of conviction for murder because of the "wilfully and feloniously" in the indictment. The court, in its opinion, said that such contention was "not discussible." Appellees in the court below relied upon Kemp v. State, 121 Miss. 580, 83 So. 744. It will be noted, however, that in the Kemp case the court was careful to say that the indictment "did not charge habitual sexual intercourse between the parties as the statute prescribed that state could do," and, therefore, whether or not it was necessary affirmatively to charge that the unlawful cohabitation was either in adultery or fornication was not decided by the court.
The Kemp case did not so much define the elements of an indictment for unlawful cohabitation as simply to hold that "having specifically charged" the cohabitation to be in adultery it was incumbent upon the state to so prove and it was too late for it to amend after the proof was in.
Group (2) of the defendants' grounds of demurrer advances the proposition that the indictment is fatal because it does not set out the period of time during which the unlawful cohabitation continues or occurs. But time is not of the essence of the offense. Since time is not of the essence of the offense, section 1428, Code of 1906 (Hemingway's Code, section 1184), controls. 2 C. J., page 22; Spencer v. State (Okla.), 169 P. 270; 1918F, L. R. A. 592; Kitchens v. State (Okla.), 140 P. 619; Lyman v. People, 198 Ill. 544, 64 N.E. 974.
A very able annotation on the subject of illicit cohabitation is found in L. R. A. 1916C, 653-670. On pages 669 and 670, under the heading "indictment" the very point involved herein is ably and fully discussed, and the conclusion of the author is well supported by the cases cited. See, too, 25 Cyc. 214, par. B-5.
Engle & Laub, W. A. Geisenberger and Ernest E. Brown, for appellees.
I. This court has lately reaffirmed the elements that are necessary to constitute this offense in Lee v. City of Oxford, 99 So. 509. The court referred to the cases of Carrotti v. State, 42 Miss. 337; Spikes v. State, 98 Miss. 483, 54 So. 1; and Granberry v. State, 61 Miss. 440. From these decisions it is clear that the offense of unlawful cohabitation is an offense of which time is of the essence. It is an offense that under the wording of our statute and the decisions of our courts cannot be committed in one day. Therefore, the indictment laying the commission of the offense as on one certain day, to-wit: March 24, 1924, charges what is a legal impossibility as well as charges a condition that is impossible in fact. An indictment that charges a condition impossible in fact is not good. Johnson v. United States, 158 F. 69.
The offense under discussion must, under the doctrine of the Spikes case, consist of acts done on different days, and, therefore, the indictment must allege more days than one.
This court has always held that to constitute the offense, the habitual sexual intercourse must extend over or through a specified period of time, that is for some months, weeks or at least some days, each case depending upon its particular facts. Granberry v. State, 61 Miss. 440; Spikes v. State, 98 Miss. 483; Lee v. City of Oxford, 99 So. 509.
In Carrotti v. State, 42 Miss. 333, 340, the indictment alleged the unlawful cohabitation from March 1st to July 1, 1867. In Kinard v. State, 57 Miss. 133, it seems the indictment charged the unlawful cohabitation through a series of years or from 1868 until indicted in January, 1879. In Stewart v. Brown, 64 Miss. 626, it appears the indictment charged the unlawful cohabitation for a period of two years prior to the finding of the indictment.
II. The indictment fails to charge that the cohabitation was either in adultery or fornication. This omission of itself renders the indictment undoubtedly bad. The word "cohabitation" does not necessarily imply living together for sexual intercourse. The word is derived from the Latin and simply means "living together." What the statute purposes to forbid is evidently cohabitation between a man and woman, for sexual purposes because it distinctly forbids a man and woman to cohabit, "whether in adultery or fornication," and cohabitation for such purposes and in such a way must be alleged and proved; otherwise no offense under the statute has been charged.
Where a statute partly or wholly defines the offense, "it is ordinarily adequate, while nothing less will suffice, to charge the defendant with all the acts within the statutory definition." I Bishop, Crim. Proc., sec. 611. In Jones v. State, 98 So. 342, Judge SYKES in reversing the case said in part: It will thus be seen this court without so deciding in so many words, at least implies it is necessary to state whether the unlawful cohabitation was in adultery or fornication. The forms laid down in Bishop on Statutory Crimes set forth whether the unlawful cohabitation was in adultery or fornication. Bishop on Statutory Crimes (3 Ed.), secs. 700, 704; see also Warren's Criminal Law (3 Ed.), pages 607, 617, 618.
This court, however, has expressly decided: "It is a general rule, that all indictments upon statutes must state all the circumstances which constitute the definition of the offense in the act, so as to bring the defendant precisely within it, they must pursue the precise and technical language employed in the statute in the definition or description of the offense." Williams v. State, 42 Miss. 328, 330; Ike v. State, 23 Miss. 525.
III. The indictment as drawn fails utterly to bring the defendants within the condemnation of section 754, Hemingway's Code, section 1029, Code of 1906. The demurrer also points out, in the sixth ground, that the indictment fails to properly make an allegation of time with reference to the habitual sexual intercourse in that the indictment fails to use the words "then and there" and that the indictment also fails to use the word "unlawful" with reference to the acts of habitual sexual intercourse.
The appellees were indicted under section 1029, Code of 1906; section 754, Hemingway's Code. The indictment, omitting the formal parts, reads as follows:
"That Fritz Meyer, a man, and Ella Ford, a woman, late of the county of Adams, on the 24th day of March 1924, in the county aforesaid, did willfully, lewdly and unlawfully cohabit together, and have habitual sexual intercourse with each other, they, the said Fritz Meyer ...
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