Territory v. Corbett

• Decision Date: 31 August 1877
• Citation: 3 Mont. 50
• Parties: TERRITORY, respondent, v. CORBETT, appellant.
• Court: Montana Supreme Court

3 Mont. 50

TERRITORY, respondent,

v.CORBETT, appellant.

Supreme Court of the Territory of Montana.

August Term, 1877.

Appeal from First District, Madison County.

THIS cause was tried in the court below by BLAKE, J.

J. E. CALLAWAY, for appellant.

The demurrer to the indictment was improperly overruled. Neither the court nor grand jury had jurisdiction of the offense charged. The offense charged is nowhere made a crime by our laws. There is no such crime as fornication recognized, defined or provided with penalty under the statutes of Montana. The law making it a crime for a man and woman to live together in an open state of fornication, passed by the first legislature of the Territory, was omitted from the Codified Laws of 1872.

No case is to be brought within the statute by construction. Bishop on Stat. Crimes, § 220.

There is no law of the Territory declaring any marriage of parties, however related, incestuous and void.

The court erred in denying a change of venue. The court should exercise a reasonable discretion. People v. Mahoney, 18 Cal. 188.

The court erred in admitting testimony of the accomplice, and further in refusing to hear argument of counsel thereon.

The court erred in giving instructions No. 1, 2, 3, and in refusing instruction No. 7.

The motion for a new trial was improperly overruled; the evidence under our laws was not sufficient to justify the verdict.

The failure to prove defendant was unmarried was fatal. Territory v. Whitcomb, 1 Mont. 362.

The admission of testimony of Smith and Yager was error. It did not corroborate that of the accomplice. It is ground for new trial where defendant is found guilty on the uncorroborated testimony of an accomplice. Ray v. The State, 1 Green (Iowa), 316; People v. McElvain, 39 Cal. 654; People v. Ames, 39 Id. 403;People v. Joslyn, Id. 392.

It was error to admit testimony of witnesses not indorsed on the indictment. Smith v. State, 4 Green (Iowa), 189.

The court erred in rendering judgment while a motion for a new trial was pending. Also for refusing to hear motion in arrest of judgment.

J. G. SPRATT, district attorney, for respondent.

The sufficiency of the indictment in this case is to be tried by the construction of section 146, page 303 of the Codified Statutes of Montana, under which it was drawn, and also of section 2, page 520, of the same statutes, prohibiting marriages between parties nearer of kin than second cousins. Intermarriage of such parties is void. Sedgwick on Stat. and Const. Law, 84-89.

Sexual intercourse between parties so related is incestuous. Bouvier's Law Dictionary.

A witness may waive her right to refuse to testify when such testimony would criminate herself. No third person can object. Southard v. Buford, 6 Cowen, 254; Starkie on Ev. 41 and note at bottom.

Privileged communications become competent testimony with consent of the patient. Defendant was not the patient and had nothing to say. Johnson v. Johnson, 14 Wend. 637; 1st Greenleaf on Ev., § 249.

Consultation with physicians about procuring abortions are not privileged communications under our statute. Codified Statutes, 125, § 450; Hewett v. Prince, 21 Wend. 79.

KNOWLES, J.

This defendant was indicted by the grand jury of Madison county, for a violation of the provisions of section 146 of the Criminal Laws of this Territory. The section is as follows:

“Persons being within the degrees of consanguinity, within which marriages are declared to be incestuous and void, who shall inter-marry with each other, or who shall commit fornication or adultery with each other, shall, on conviction, be punished by imprisonment in the Territorial prison not less than one, nor exceeding ten years.”

I will consider the points presented in this case somewhat in the order in which they are presented in appellant's brief.

It is claimed that the grand jury which found the indictment had no jurisdiction to inquire into the offense charged. According to section 6 of the Criminal Practice Act the district court has jurisdiction of all offenses which subject the offender to imprisonment in the Territorial prison. An offender in such a case as this would be subject to imprisonment in the Territorial prison. It was held by the court in the case of Territory v. Flowers, 2 Mont. 531, that the district courts in the respective counties when they convene, had jurisdiction of every crime known to our laws. It is evident, from a consideration of the general scope of the Criminal Practice Act, that a grand jury is one of the means provided the district court for inquiring into public offenses, and that its jurisdiction in that particular is co-extensive with that of the district court in which it is impaneled.

Section 143 of the Criminal Practice Act undoubtedly settles this question. It provides that “the grand jury has power, and it is their duty to inquire into all public offenses committed or triable within the jurisdiction of this court, and to present them to the court by indictment.” There is then no validity in this first objection to the indictment.

The second ground of objection to the indictment is that the facts stated do not constitute a public offense. Under this head it is urged that the indictment charges that the defendant committed “the crime of fornication,” when there is no such crime known to our laws. It is true that our criminal statutes do not specify any acts that shall constitute the crime of fornication, and there never was any such crime known to our laws. The criminal laws enacted by the first legislative assembly of the Territory provided a punishment for persons living in an open state of fornication.

The indictment under consideration was evidently drawn to meet the provisions of section 146 of our Criminal Laws, and under that section all the other facts appearing, only one single act of fornication would be sufficient to constitute the crime therein specified. Hence, although that law of the first legislative assembly may be in force now, it could not meet a case where there was but a single act of fornication, for living in an open state of fornication is a different offense from fornication. The fact that the indictment calls fornication a crime would not probably vitiate it. The words “crime of” may perhaps be considered surplusage. Quite a number of cases are cited in Bishop on Crim. Proc., § 481 and note 4, where words in indictments have been regarded as surplusage when it is not so apparent that they are such, as in this indictment. It is not necessary, however, that we should rest our decision upon this point upon the construction of that clause in the indictment.

The indictment, after setting forth all the other necessary facts, contains this language: “Did commit the crime of fornication with the said Sarah Parker, and then and there had carnal and sexual intercourse with the said Sarah Parker.”

If the language, “then and there had carnal and sexual intercourse,” is equivalent to the term, “fornication,” used in the statute, then the indictment is sufficient in its allegations upon this point without the words, “crime of fornication.”

Section 169 of our Criminal Practice Act provides: “Words used in the statute to define a public offense need not be strictly pursued, but other words conveying the same meaning may be used.”

Webster's Dictionary defines fornication to be “the incontinence or lewdness of an unmarried person, male or female.” Bouvier's Law Dictionary defines it as, “The unlawful carnal knowledge of an unmarried person with another, whether the latter be married or unmarried.” The first count in the indictment charges that the defendant is unmarried. There cannot be any doubt but the words, ““carnal and sexual intercourse,” have a meaning equivalent to the words used by the above works in defining fornication.

The clause in the indictment, “did commit the crime of fornication,” then may be surely treated as surplusage. “No indictment shall be quashed or set aside for any surplusage when there is sufficient matter alleged to indicate the crime and person charged.” Codified Statutes, § 171, p. 217.

The next objection to the indictment is in effect an objection to the statute under which it is drawn. It is insisted that the laws of this Territory do not declare any marriage incestuous and void, and without some law of this import this statute is a nullity.

We have a statute that reads as follows: “No marriage shall be contracted while either of the parties shall have a husband or wife living, nor between parties who are nearer of kin than second cousins, computing by the rules of the civil law, whether by the half or whole blood.” Marriage under our laws is treated as a civil contract. The general rule is that when any contract is entered into which is prohibited by a statute it is void, and it is not necessary that the statute should in express terms declare it void. The prohibition of such a contract in effect declares it void. Sedgwick on Stat. and Const. Law, 84; 2 Pars. on Cont. 746.

The effect of the above statute then is to declare void any marriage between the defendant and Sarah Parker, because it appears that the defendant is her half-brother. It is said, however, that the marriages prohibited between kin in this statute are not declared incestuous. What marriages are incestuous? “When the parties to an act or series of acts of unlawful carnal intercourse are related to each other within the degrees of consanguinity or affinity wherein marriage is prohibited by law, their offense is called incest.” Bishop on Stat. Crimes, § 727. To the same effect will be found the definition given in Bouvier's and Burrill's Law Dictionary. The word “incestuous” is an adjective and qualifies a noun, whether it stands for a person or thing, and attaches to it the character of incest. An incestuous person is one guilty of incest. An incestuous cohabitation or sexual intercourse is a cohabitation or sexual intercourse between persons related...