Crutcher v. Crutcher

86 Miss. 231 | Miss. | 1905

Whitfield, O. J.,

delivered the opinion of the court.

The demurrer should have been overruled. We hold the crime of pederasty to be cruel and inhuman treatment, within the meaning of our statutes on the subject. We approve the reasoning of the Ohio case cited by counsel for the appellant. That court says (quoting from Mr. Bishop in the fourth edition of his work on Marriage and Divorce) : “ ‘Cruelty, in the sense of the statutes on this subject, is such conduct in one of the married parties as renders his continuance of cohabitation either so dangerous to the other party in fact, or attended with such reasonable apprehension in the mind of the other, to the physical distress or discomfort of the other, as to demand his separation on the ground of the real physical safety of the other, or of mental or physical capacity of the other to discharge well the duties of husband or wife.’ 1 Bishop on Marriage and Divorce (4th ed.), 716, 717. Tested by these principles and these definitions, the act of sodomy charged is legal cruelty, within the terms of our statute. Unnatural practices of the kind charged here are an infamous indignity to the wife, and which would make the marriage relation so revolting to her that it would become impossible for her to discharge the duties of wife, and would defeat the whole purpose of the relation. In the natural course of things,- they would cause mental suffering to the extent of affecting her health, and would give rise to serious apprehension of communication to her of disease in case of the continuance of cohabitation. Such conduct constitutes extreme cruelty, as explained by the courts.” All that is here said of sodomy is equally applicable to pederasty, as defined by the bill in this case. Whether restricted to sodomy, as commonly understood, or whether pederasty means what is here alleged in this case, or what it is defined to be in the larger dictionaries, it is cruel and inhuman treatment, within the meaning of our statute.

Reversed, demurrer overruledj, and cause remanded, with leave to ansiver in thirty days from the filing of the mandate in the court below.