State v. Sekrit

• Court: Missouri Supreme Court
• Writing for the Court: Sherwood, J.
• Citation: State v. Sekrit, 130 Mo. 401, 32 S.W. 977 (Mo. 1895)
• Decision Date: 19 November 1895
• Parties: The State v. Sekrit, Appellant

32 S.W. 977

130 Mo. 401

The State v. Sekrit, Appellant

Supreme Court of Missouri, Second Division

November 19, 1895

Appeal from Jefferson Circuit Court. -- Hon. James F. Green, Judge.

Reversed and remanded.

Joseph J. Williams and C. H. Kleinschmidt for appellant.

(1) The court erred in overruling the demurrer and also the motion in arrest of judgment. The letter set out in the indictment contains no threat to accuse of any crime or felony. For a man and woman, both of whom are married but not to each other, to unlawfully, shamefully, and habitually have sexual intercourse, if such a thing be possible, is not an offense punishable either at common law or under the statute of this state, and hence to send a letter to a man threatening to accuse him of such conduct is not an indictable offense. At common law adultery was not indictable unless open and notorious, and amounting to a public nuisance. 1 Bishop on Criminal Law [4 Ed.], ch. 3, sec. 39, p. 19. It is not indictable under the statute, except where the parties live in a state of open and notorious adultery, or when a man and woman, one or both of whom are married, but not to each other, lewdly and lasciviously abide and cohabit together. Sec. 3798, R. S. 1889. It follows that, as the letter did not by its tenor, or, as pleaded in the indictment, contain any threat to accuse of any crime or felony, the indictment is legally insufficient to support the conviction of the defendant.

R. F Walker, attorney general, for the state.

(1) The indictment in this case follows the language of the statute creating the offense, and is sufficient. R. S. 1889, sec 3554. State v. Stewart, 90 Mo. 507; State v Linthicum, 68 Mo. 66. (2) Parol evidence was admissible to explain the contents of the letter and its meaning. State v. Linthicum, supra. As stated by Judge Henry in the case just cited: "To hold that parol evidence was not admissible for the purpose of explaining the intent or meaning of the letter, would be to say that one would be enabled to violate the statute with impunity by making his threats in such a manner that, however well understood between the parties, it would still be no violation of the law unless it was apparent from the letter itself, the exact meaning and intent with which it was written, to all other persons."

OPINION

Sherwood, J.

The defendant comes to this court on appeal, having been convicted in the lower court of sending a threatening letter, and his punishment assessed at six months in the county jail.

The indictment, so far as necessary to quote it, is the following:

"That Julius Sekrit, Mary Sekrit and Ida Sekrit, late of the county aforesaid, on the sixth day of February, 1894, at the county of Jefferson, state aforesaid, did knowingly, unlawfully, and feloniously write and make a certain paper, letter, and writing, signed with the name of Ida Sekrit, and directed and addressed to one Dr. I. N. McNutt, and for the purpose of being delivered and sent to the said Dr. I. N. McNutt, did part with the possession of said paper, letter, and writing by depositing the same in the United States post office at Festus, in the county of Jefferson, state of Missouri, and that in and by said paper, letter, and writing, which was as follows:

'Festus, Mo., February 6, 1894.

'Dr. McNutt, pevely, Mo.

'My father told me to write this letter, my father said he has now got the right hold on what has happened between my mother and you. My mother will swear to the truth of how you have treated her, she does not tell me but she said I should tell you to think of the last time that you attended her when she was sick. Father said he will now punish you for it if you wish to pay the sum of $ 5,000 everything will be still if not he will go to court, and then we will see who is the rascal and fool as you called my father. If you wish to settle let him hear from you this week through the mail he will not have you step in his house again.

'Respectfully,

'Ida Sekrit.'

"The said Julius Sekrit, Mary Sekrit, and Ida Sekrit did therein threaten to accuse the said Dr. I. N. McNutt of the crime of adultery with the said Mary Sekrit in having on the day of , , in the county of Jefferson, state of Missouri, unlawfully, shamefully, and habitually having sexual intercourse together. The said Dr. McNutt and Mary Sekrit not being then and there married to each other, but the said Dr. I. N. McNutt being then and there a married man and having a wife living, and she, the said Mary Sekrit being then and there a married woman and having a husband living; with the view and intent thereby then and there feloniously to extort and gain from the said Dr. I. N. McNutt a certain sum of money, to wit, five thousand dollars, being the money of, and belonging to, the said Dr. I. N. McNutt. Against the peace and dignity of the state.

"Jos. G. Williams,

"Prosecuting Attorney."

The defendants demurred to the indictment because it did not charge any offense against the laws of the state, etc. This demurrer was unsuccessful, as was also a motion in arrest.

The indictment thus questioned, is based on the provisions of section 3534, Revised Statutes, 1889, which, so far as applicable to the case in hand, is as follows:

"Every person who shall knowingly send or deliver, or shall make, and for the purpose of being delivered or...