Tribbey v. State
| Decision Date | 17 March 1918 |
| Docket Number | 23,571 |
| Citation | 126 N.E. 481,189 Ind. 205 |
| Parties | Tribbey v. State of Indiana |
| Court | Indiana Supreme Court |
From Rush Circuit Court; Will M. Sparks, Judge.
Prosecution by the State of Indiana against John B. Tribbey. From a judgment of conviction, the defendant appeals.
Reversed.
Chauncey W. Duncan, for appellant.
Ele Stansbury, Attorney-General, A. B. Cronk and Dale F Stansbury, for the state.
The appellant was tried by a jury and convicted on an indictment returned by the grand jury of Rush county, charging him with living and cohabiting in a state of adultery with one Blanche Alsman, a married woman.
From a judgment on the verdict the appellant appeals and assigns as error: (1) That the trial court erred in overruling appellant's motion to quash the indictment. (2) The trial court erred in overruling appellant's motion for a new trial.
The charging part of the indictment reads as follows: "That one John B. Tribbey, then and there a man late of said county, on the 26th day of December, 1918, at said county and state aforesaid, and at divers times previous to this presentment, and Blanche Alsman, then and there a married woman, and the said parties not being married to each other did then and there unlawfully live and cohabit together in a state of adultery."
This indictment is based on § 2353 Burns 1914, Acts 1905 p. 584, § 457, which provides that: "Whoever cohabits with another in a state of adultery or fornication shall be fined not exceeding five hundred dollars, or imprisoned in the county jail not exceeding six months, or both."
The defendant moved to quash the indictment for the reason that it does not state facts sufficient to constitute a public offense, and in the memorandum attached to such motion to quash he says the indictment fails to charge in the language of the statute, or equivalent language that the defendant with the said Blanche Alsman lived and cohabited together as husband and wife. It was not necessary for the indictment to state that they cohabited together as husband and wife. The language of the statute is, "Whoever cohabits with another in a state of adultery," etc. The indictment is in the language of the statute and is sufficient. State v. Chandler (1884), 96 Ind. 591; State v. Stephens (1878), 63 Ind. 542; Wall v. State (1864), 23 Ind. 150; Hood v. State (1877), 56 Ind. 263, 26 Am. Rep. 21.
One of the reasons assigned for a new trial is that the court erred in giving to the jury instruction No. 11. This instruction is not set out in appellant's brief. It appears that the instructions given in the cause are not brought into the record by bill of exceptions. The instructions not being in the record by a bill of exceptions, no question concerning the ruling of the court in giving or refusing instructions can be considered by this court on appeal. Peacock v. State (1910), 174 Ind. 185, 91 N.E. 597; Donovan v. State (1916), 185 Ind. 15, 111 N.E. 433.
The appellant claims that the verdict is not sustained by sufficient evidence and is contrary to law. In determining this question the court cannot weigh the evidence, and must sustain the verdict unless there is a total failure of evidence as to some essential element of the offense.
One of the essential elements of the offense with which appellant is charged is cohabitation as used in § 2353 Burns 1914 supra. It has been held that to cohabit in the sense in which the word is used in this statute is for a man and woman to live together in the manner of husband and wife, and that it implies a dwelling together for some period of time, and is understood as something different from occasional, transient interviews for unlawful sexual intercourse. To sustain an indictment under this section the evidence must establish cohabitation, including one or more acts of sexual intercourse between the parties not lawfully occupying the relation of husband and wife. Jackson v. State (1888), 116 Ind. 464, 19 N.E. 330; Richey v....
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