Summary
In Patterson v. State, 190 Miss. 643, 1 So.2d 499 (1941), the indictment charged a man and woman, "they not being then and there lawfully married each to the other, did lewdly and unlawfully cohabit together in adultery."
Summary of this case from Van Norman v. StateOpinion
No. 34421.
April 14, 1941.
1. LEWDNESS.
An indictment charging that on certain day and then continuously until return of indictment the defendants without being married to each other did lewdly and unlawfully cohabit together in adultery was sufficient to preclude reversal of conviction, since it sufficiently apprised defendants of the nature of the accusation against them and any defects would have been amendable if point had been made in trial court (Code 1930, sec. 772).
2. CRIMINAL LAW.
In prosecution for unlawful cohabitation in adultery, failure of the instructions to require that jury believe beyond reasonable doubt before returning verdict of guilty that one or other of defendants was married to some other person at time complained of was reversible error, particularly where proof disclosed a common-law marriage between defendants except for denial by one of defendants that such relationship existed (Code 1930, sec. 772).
APPEAL from the circuit court of Simpson county, HON. EDGAR M. LANE, Judge.
Hilton Kendall, of Jackson, for appellants.
No demurrer was filed to the indictment in the court below. Therefore, if the indictment should merely be erroneous and insufficient in some particular, but withal sufficient to charge a crime and to inform the appellant of the nature and cause of the accusation against him, then the defect or error in the indictment cannot be availed of for the first time in the Supreme Court. However, if the indictment is wholly void and charges no crime, an objection thereto may be interposed and will be considered on this appeal.
Pitman v. State, 107 Miss. 154, 65 So. 123; Newcomb v. State, 37 Miss. 383; Patterson v. State, 127 Miss. 356, 90 So. 2; Reed v. State, 171 Miss. 65, 156 So. 650; McGaha v. State, 173 Miss. 829, 163 So. 442.
The gist of the crime of unlawful cohabitation is habitual sexual intercourse whether the parties dwell together or not.
Granberry v. State, 61 Miss. 440; Kinard v. State, 57 Miss. 132; Carotti v. State, 42 Miss. 334, 2 Mor. St. Cas. 1562, 97 Am. Dec. 465; Newman v. State, 69 Miss. 393, 10 So. 580; Jones v. State, 133 Miss. 801, 98 So. 342.
The indictment here charges that the parties did "continually" cohabit together in adultery. It does not expressly allege that they were guilty of habitual sexual intercourse or that their cohabitation together was habitual. The words "continually" and "habitually" are not synonymous. Continually implies a condition without cessation without any suggestion that the act was oft-repeated or a matter of habit. Habitually carries with it the meaning and implication that the act is oft-repeated and has become so firmly established as a part of the lives of the parties that they are apt to repeat this act whenever a reasonable opportunity presents itself. Therefore, we feel and respectfully urge that the appellant in this case was not tried upon an indictment charging any offense.
Sec. 772, Code of 1930; Granberry v. State, 61 Miss. 440; Newman v. State, 69 Miss. 393, 10 So. 580; Jones v. State, 133 Miss. 801, 98 So. 342.
Where adultery is charged in a prosecution for unlawful cohabitation, and the indictment does not charge habitual sexual intercourse, the charge of adultery is a matter of substance and must be proved as alleged.
Kemp v. State, 121 Miss. 580, 83 So. 744; State v. Meyer, 125 Miss. 878, 101 So. 349.
In a prosecution for unlawful cohabitation, it is necessary for the state to prove that the parties were not married to each other where this fact is alleged in the indictment. It will be noted that this opinion suggests, while not expressly so deciding, that this fact must be proved whether the indictment contains this allegation or not.
Dean v. State, 139 Miss. 515, 104 So. 294.
The evidence for the state made out a valid and existing common law marriage between the defendants unless one party or the other was incapacitated to contract such a marriage, since cohabitation by the parties and assumption of the burdens of matrimony in pursuance of an agreement by the parties that they are to become husband and wife would constitute a valid and binding common law marriage.
Sims v. Sims, 122 Miss. 745, 85 So. 73; Hunt v. Hunt, 172 Miss. 732, 161 So. 119; D'Antonio v. State, 187 Miss. 648, 191 So. 281; Barton v. State, 165 Miss. 355, 143 So. 861.
Every presumption will be indulged in favor of the validity of a ceremonial marriage between parties and where necessary to sustain a second marriage a divorce from the first marriage would be presumed.
Spears v. Burton, 31 Miss. 555; R.R. Co. v. Beardsley, 79 Miss. 417, 30 So. 660, 89 Am. St. Rep. 660; Sullivan v. Grand Lodge, 97 Miss. 218, 52 So. 360; Hickman v. Hickman, 126 Miss. 469, 89 So. 6; Wilkie v. Collins, 48 Miss. 496; Hull v. Rawls, 27 Miss. 471; Harper v. Fears, 168 Miss. 505, 151 So. 745, 93 A.L.R. 341; Essick v. Essick, 175 Miss. 412, 167 So. 420.
This presumption of the validity of a marriage applies with equal force to a common law marriage as well as to a ceremonial marriage.
Howard v. Kelly, 111 Miss. 285, 71 So. 391, Ann. Cas., 1918E, 1230.
The proof in this case is wholly insufficient to show that Etta Anderson had obtained no divorce from H.A. Anderson and therefore, the allegation of adultery is not sustained by the proof.
Pigford v. Ladner, 147 Miss. 822, 112 So. 785.
George H. Ethridge, Assistant Attorney-General, for appellee.
The indictment is substantially correct and would not be subject to demurrer had the demurrer been interposed at the trial. Section 1206 of the Code provides that: "All defects in indictments appearing on the face thereof shall be taken by demurrer and not otherwise," and that section applies fully to any defects that may be in the present indictment, consequently, it is too late to raise the question now of the sufficiency of the indictment.
At the close of the state's evidence the state had failed to establish that the parties were not married. All the proof in the case was consistent with a common law marriage which in this state is good but when the state closed its case, the appellant, Etta Anderson, took the stand as a witness and admitted that she had been married but did not state to whom she was married nor was she asked in reference to who her first husband was but she was asked if she had procured a divorce and said she might have without being pressed for a definite answer.
The question was for the jury, with the appearance of strong weight of evidence in favor of the state, and the jury took the view that the state had made out its case and rendered a verdict for guilty, which is amply sustained by the evidence.
If all of the instructions are taken and construed together as they must be, one as explaining and limiting another and taken as the law of the case, this case is well covered.
We do not think that the law, prior to 1880, as announced in Carroti v. State, 42 Miss. 334, 2 Mor. St. Cas. 1652, is applicable under the present statute. Prior to 1880, the offense of unlawful cohabitation was directed against unmarried people living openly together as man and wife and did not apply to clandestine acts between persons of the different sexes. That doctrine was changed in 1880 so as to cover offenses now contained in Section 772, Code 1930.
A reversal is sought in this case upon three grounds, (1) that the indictment against the appellants purporting to charge them with the crime of unlawful cohabitation, instead of alleging that the unlawful cohabitation was habitual, charged that on the ____ day of ____, 1939, "and then continuously until the day of the filing and returning of this indictment, John Patterson, a man, and Etta Anderson, a woman, they not being then and there lawfully married each to the other, did lewdly and unlawfully cohabit together in adultery;" and that theretofore the indictment charged no offense under the law; (2) that the indictment having charged that the appellants unlawfully cohabited in adultery, it was necessary that the state should prove that one of them was then married to some other person; and it is urged that the proof fails to establish such fact; and (3) that the Court erred in refusing to grant the peremptory instruction requested on behalf of the appellants, and in granting the several instructions on behalf of the state which failed to require the jury to believe from the evidence beyond a reasonable doubt that either of the appellants was married to another person at the time of the alleged unlawful cohabitation as a condition precedent to the jury's right to convict them.
The indictment, except as to the names of the accused and the dates stated therein, is in the exact language as that contained in the indictment under review by the Court in the case of Kemp and Morrison v. State, 121 Miss. 580, 83 So. 744, and which the Court inferentially approved as sufficient in both form and substance. In any event, we are of the opinion that it was sufficient to apprise the appellants of the nature and character of the accusation against them and that if the same was deficient in any particular, the defect would have been amendable if the point had been made in the trial court, which was not done. Moreover, Section 772, Code of 1930, under which the indictment in the present case is drawn, is in the same language as Section 1029, Code of 1906, which was under consideration in Kemp et al. v. State, supra, and the first part of that statute, which sets forth that which constitutes the crime, merely provides that: "If any man and woman shall unlawfully cohabit, whether in adultery or fornication they shall be fined in any sum not more than five hundred dollars each, and imprisoned in the county jail not more than six months," does not use the word "habitual" in defining the offense. The latter part of the section deals only with the nature and sufficiency of the proof required.
It was held, however, in the case of Kemp et al. v. State, supra, that when the indictment charges that the cohabitation was "in adultery," these words are a matter of substance in the indictment, and should be proved by the state; that whether or not it was necessary in the first instance to charge that the unlawful cohabitation was "in adultery," as distinguished from "fornication," the Court stated that it did not there decide. But the state having specifically charged that the cohabitation was "in adultery," the Court said that it should have been so proved.
In the case at bar the proof sufficiently disclosed that one H.A. Anderson and the appellant, Etta Anderson, were married in 1916, but it is not shown whether a divorce may have been obtained by him between that time and the beginning of the period from December, 1938, to September, 1939, when the unlawful cohabitation is alleged to have taken place between the appellants, nor is it shown where Anderson may have lived during the period from 1916 to 1938. It was merely shown that again in September, 1940, when the appellant, Etta Anderson, was arrested and taken into custody, she was found at night at the home of the said H.A. Anderson, but not in the same room, and that she admitted that she had been married to him. She testified at the trial that she had been married, but when asked whether she had a divorce, she replied, "Well, I might have one." While the proof as to whether she had a husband at the time complained of in the indictment is not altogether satisfactory, we will not reverse the case on that ground, since we are unable to say that it was not sufficient as against the request for a peremptory instruction for the appellants.
However, the instructions granted on behalf of the state wholly fail to require the jury to believe beyond a reasonable doubt, from circumstances or otherwise, that either of the appellants were married to some other person at the time complained of, before the jury could return a verdict of guilty. No attempt was made to show whether the appellant, John Patterson, was ever married to anyone else, and all the proof disclosed that the relations between the appellants were such as to constitute a valid common law marriage between them, except for the fact that the appellant, Etta Anderson, took the witness stand in her own behalf, without the advice of counsel, and in the absence of the other defendant, and denied the alleged relationship in toto.
Under the circumstances, it is necessary that the cause be reversed and remanded for a new trial.
Reversed and remanded.