State v. Sauls

• Citation: 70 S.C. 393,50 S.E. 17
• Court: United States State Supreme Court of South Carolina
• Decision Date: 02 February 1905
• Parties: STATE. v. SAULS.

70 S.C. 393

50 S.E. 17

STATE.

v.SAULS.

Supreme Court of South Carolina.

Feb. 2, 1905.

FORNICATION—SEPARATE INDICTMENTS— EVIDENCE.

1. Under Cr. Code 1902, §§ 290, 292, defining "fornication" as intercourse with "each other, " and providing that any person guilty of it shall be liable to indictment, does not prevent indictment of either party to the crime separately.

[Ed. Note.—For cases in point, see vol. 23, Cent. Dig. Fornication. § 2.]

2. The exclusion of a question asked prosecuting witness on examination — whether she

brought the case herself, or somebody got her to bring it—was not prejudicial to defendant, as it would have had little effect as a test of the credibility of the witness, and where defendant's testimony varied little from that of prosecutrix.

3. Whether the acts of fornication proven were frequent enough to make the crime habitual was a question for the jury.

Appeal from General Sessions Circuit Court of Hampton County.

William Sauls was convicted of crime, and appeals. Affirmed.

W. S. Tillinghast and Jno. S. Reynolds, for appellant.

James E. Davis, Sol., for the State.

WOODS, J. The defendant was indicted for fornication, the woman with whom the offense was alleged to have been committed not being included in the indictment Before the trial began, the defendant moved to quash the indictment on the ground that neither the man nor the woman could be separately indicted. The motion was refused, and the defendant was convicted and sentenced.

The first exception, alleging error in the circuit judge in refusing to quash the indictment, cannot be sustained. The general rule is that the participants in the crime of fornication may be either jointly or separately indicted. 9 Ency. P. & P. 645. But the de-fendant relies upon the peculiar words of the statute to sustain his position. Cr. Code 1902, § 290, provides that "any man and woman who shall be guilty of the crime of adultery or fornication shall be liable to indictment, " etc. Section 292 defines "fornication" as "the living together and carnal intercourse with each other, or habitual carnal intercourse with each other, without living together, of a man and woman, both being unmarried." The defendant's view is that the words "with each other, " in this last section, should be regarded as necessarily implying that the man and woman should be indicted together, and not separately, especially when it is considered that the statute provides for the indictment of any man and woman, not any man or woman, who shall be guilty of the crime of fornication. The practical objection to this construction is that it is extremely technical, and would result in allowing one guilty party to escape if the other should die before indictment. But aside from this, the principle has been long...