Hinson v. State, 7 Mo. 244

Hinson v. State

7 Mo. 244 | Mo. | 1841

Opinion of the Court by

Tompkins, Judge.

This indictment is founded on the 8th section of the 8th article of the act concerning crimes, in the words of the act.

It charges, in the words of the act, that Isham Hinson, late of, &c., being a married man, and not married to Uiana Smith, unlawfully did lewdly and lasciviously abide and cohabit with the said Diana Smith, contrary to the form, &c.

There was a motion for a new trial and in arrest of judgment.

First. Against the indictment it is alleged that a single act °f cohabitation, not constituting the indictable offence of hiding and cohabiting, the indictment should have charged the offence with a continuando.

*245The indictment in the case of the Commonwealth v. Calif, 10th Massachusetts Reports, 153, is framed on a statute cisely similar. The defendant in that case admitted that one act of criminal intercourse betwixt him and the woman ramed in the indictment could be proved, and it was agreed betwixt him and the attorney general, that if such evidence was in the opinion of the court sufficient to maintain indictment, the defendant would on his arraignment plead guilty to the indictment, and submit, &c. The court being of opinion that such proof would not sustain the charge of associating and cohabiting together (for that is the language of the Massachusetts act,) discharged the prisoner, observ- . , , . . ing that such evidence might have maintained a charge oi adultery. The attorney general of Massachusetts thought it a good indictment, and the .court did not seem to think otherwise, for on defect of evidence alone was the prisoner discharged. The counsel for the appellant seemed also think that the evidence to maintain the charge was slight, Had I been a juror, I could have reconciled myself to find a verdict of guilty7 on much slighter evidence than what was given in this cause. Because, then, the indictment seems well enough framed, and that there is no deficiency of dence, the judgment of the circuit court will be affirmed.