83 So. 744 | Miss. | 1920
delivered the opinion of the court.
The appellant, Mollie Kemp, was jointly indicted and convicted with one Morrison on a charge of unlawful cohabitation, from which she appeals; the charging part of the indictment being as follows:
“That J. W. Morrison and Mollie Kemp, in said county, on the 1st day of May, 1916, and continually until the date of filing of this indictment, the said J. W. Morrison a man, and Mollie Kemp, a woman, they not being then and there lawfully married each to the other, did lewdly and unlawfully cohabit together in adultery. ’ ’
On the trial of the case the state failed to prove that either party was married; that is, that the parties had cohabited “in adultery” as charged. When counsel for appellant moved the court for a peremptory instruction and discharge of the appellant for the reason that the state had failed to prove the adultery as alleged in the indictment the court permitted the district attorney, on motion, to amend the indictment by striking-out the words “in adultery.” Thereupon the case went to the jury, resulting in a conviction, and this action of the court is assigned here as reversible error.
The- indictment was drawn under section 1029, Code of 1906 (section'754, Hemingway’s Code), which provides that, “if any man and woman shall unlawfully cohabit, whether in adultery or fornication, they shall
We think that the charge of cohabitation “in adultery” was a matter of substance in the indictment, and should have been proved by the state, since the grand jury had charged that the unlawful cohabitation was a cohabitation by the parties “in adultery.” Therefore the court erred in permitting the amendment of the indictment with reference to a substantial part of the crime as charged by the' grand jury. Whether or not it was necessary in the first instance to charge that the unlawful cohabitation was either in adultery or fornication, since it did not charge habitual sexual intercourse between the parties as the statute prescribes the state could do, we do not decide. But, having specifically charged the cohabitation “in adultery,” it should have been so proved by the state.
The judgment of the lower court is reversed and the case remanded.
Reversed and remanded.
