30 S.C. 85 | S.C. | 1889
The opinion of the court was delivered by
The appellant was indicted jointly with one Laura Smoak for adultery, the charge in the indictment being, “that the áaid Daniel J. Carroll and Laura Smoak * * * did unlawfully and habitually have carnal intercourse with each other, he, the said Daniel J. Carroll, being then and there a married man, and she, the said Laura Smoak, then and there being unmarried,” &c.
At the call of the case, the solicitor announced that the defendant, Laura Smoak, not having been arrested, he would proceed with the trial of Carroll. Counsel for appellant objected unless both defendants were put on trial, the offence being joint, and the two being jointly indicted. The objection was overruled, and the court proceeded with the trial of appellant alone.
It seems that a number of the citizens of St. Matthews, where appellant resided, impressed with the belief that he was practising adultery with said Laura Smoak, assembled in public meeting and passed resolutions, which are set out in the record, demanding that appellant leave the town of St. Matthews within a prescribed time, on pain of an indictment for adultery, and such further action as might be deemed necessary. These resolutions, signed by forty-one citizens, were communicated to the appellant, who replied by letter, likewise set out in the record, in which he pledged himself to abandon, at once and forever, all connection with Laura Smoak. Amongst other evidence offered at the trial, these resolutions were offered, and the appellant objected, and the objection was overruled by the court in the§e words: “Not on the ground that the facts stated in the resolutions would thereby be put in evidence, but because they contain a charge of adultery against the defendant, and defendant’s reply could only be known when the precise nature of the charge appeared; and when the charge was in writing, the rules of evidence ordinarily required the production of the writing.” The solicitor, however, seeming impressed by defendant’s objection, did not then put the resolutions in evidence.
At a subsequent stage of the case, appellant’s letter in reply to the resolutions was offered in evidence by the solicitor, which, upon objection on the part of the defence, was ruled admissible,
At the close of the testimony, the case was submitted to the jury under the charge of the Circuit Judge, and a verdict of guilty having been rendered, defendant, upon the minutes, moved for a new trial and in arrest of judgment, which motions were refused, and the defendant was sentenced to pay a fine of two hundred dollars, or be imprisoned in the State penitentiary, at hard labor, for the period of six months. Thereupon defendant appealed upon the several grounds set out in the record.
The first ground imputes error to the Circuit Judge in.refusing to charge as follows: “That to establish the crime of adultery, where the parties are not charged as living together, the testimony must satisfy the jury beyond a reasonable doubt that the criminal intercourse was habitual — that is, frequent; occasional acts will not be sufiicient.” In response to this request, the Circuit Judge said: “I charge you that is the law, except that I decline to charge you what habitual is. I charge you that it is not occasional, but how frequently it must be committed to make it habitual, I leave to your discretion. I am not prepared to say how often the act must have been committed, nor how nearly
The second and third grounds of appeal impute error to the Circuit Judge in declining to define the terms, “habitual carnal intercourse,” as used in the statute, and leaving the interpretation of those terms to the jury. The language of the statute, as found in section 2589 of General Statutes, is as follows: “Adultery is the living together and carnal intercourse with each other, or habitual carnal intercourse with each other without living together, of a man and woman, when either is lawfully married to some other person.” Under this statute, adultery may be committed in either one of two ways : 1st. Where a man and woman, one of whom is married to another person, live together in carnal intercourse. 2nd. Where, not living together, they indulge in habitual .carnal intercourse, and the indictment in this case falls under the second head. It will be observed, that the statute does not undertake to define either the word “habitual” or the word “carnal,” and their meaning must be determined by the common sense of mankind; and in the absence of any statutory definition, it would be very difficult, if not absolutely impossible, to define, with any greater precision, the terms, “habitual carnal intercourse,” than was done by the Circuit Judge in this case — that it must be frequent and not occasional — but how frequent to make it habitual, must be left to the common sense of the jury.
What are the habits of a person must necessarily be a question
The fourth ground of appeal imputes error to the Circuit Judge in overruling appellant’s objection to being tried in the absence of his co-defendant, the offence being joint and the two being jointly indicted. Certainly, the fact that these two parties were jointly indicted, is not sufficient to forbid the trial of one without the presence of the other; for this would lead to the extraordinary (not to use any harsher term) result, that where two or more per
The authorities show that this position cannot be sustained. In Commonwealth v. Bakeman (131 Mass., 577; S. C., 41 Am. Rep., 248), it was held that on an indictment against a man and a married woman for adultery, the man alone may be convicted, although the woman was too drunk to consent to the intercourse, and could not, therefore, be convicted. If this b.e so, then, surely, either party might be tried alone. So, in State v. Ellis (74 Mo., 385; S. C., 41 Am. Rep., 321), it was held, that, under an indictment for incest, similar in this respect to adultery, one party having knowledge and the other being ignorant of the relationship, the former may be convicted and the latter acquitted. Again, in Alonzo v. State (15 Tex. Ct. App., 378; S. C., 49 Am. Rep., 207), where the authorities are reviewed, it was held, that where the parties were jointly indicted for adultery and severed on the trial, the woman being tried first and acquitted, that did not operate as an acquittal of the man, and his plea in bar on that ground was overruled. It appears from the opinion in that case, that there are two cases in North Carolina which hold the contrary, though the weight of authority is the other way. But the North Carolina cases concede that the parties may be tried separately.
In our own State, we have no authority, so far as we are informed, directly on this point, but we have cases which, in principle, it seems to us, are strictly analogous. Although it requires the cooperation of at least three persons to commit a riot, yet from the case of The State v. Thackam (1 Bay, 353), followed
The point raised by the fifth ground of appeal is disposed of by what we have said in considering the fourth ground.
The sixth and seventh grounds, which complain of error in receiving in evidence the resolutions of the public meeting and the appellant’s letter in response thereto, may be considered together. Indeed, so far as the sixth ground is concerned, the “Case,” as settled by the Circuit Judge, which is, of course, conclusive here, precludes the appellant from raising the question as to the admissibility of the resolutions, for it there appears that they were put in without objection. But as the counsel for appellant seems so earnestly impressed with-the conviction that injustice (unintentional, of course) has been done him, in representing that he assented to the introduction of the resolutions in evidence, we will consider the question, as if the objection had been interposed at the proper time.
We do not suppose there can be a doubt that, if the persons composing the public meeting, or some of them, had gone to the appellant and verbally made to him the statements embodied in the resolutions, to which he had verbally replied in the terms of his letter, it would have been competent to prove what passed between the parties, provided the statements made by defendant were not extorted from him by something amounting to the legal idea of duress. If so, then we are unable to perceive why the communications, which happened to be in writing, should not be quite as good, if not better, testimony than the verbal statements.
The question then recurs, whether the letter was extorted from
In the argument here, counsel for appellant has raised another question, which, though not presented by any of the grounds of appeal, he claims to be a question of jurisdiction, which may be raised at any time. The point, as we understand it, is that, inasmuch as the indictment fails to charge that the defendants were guilty of habitual carnal intercourse with each other “without living together,” there is no charge of any criminal offence of which the court could take jurisdiction. This, it seems to us, raises rather a question as to the sufficiency of the indictment than a question of jurisdiction. The indictment purports to charge the offence of adultery, of which the court below unquestionably had jurisdiction; and if the charge is defectively made, the objection should have been taken by motion to quash the indictment, or by a motion in arrest of judgment, and not by a plea to the jurisdiction of the court. So far as the record shows, no such objection was taken in the court below, and the question whether -there is any defect in the indictment is not, strictly speaking, properly before us.
It is stated, however, in the “Case,” that a motion in arrest of judgment was made and overruled by the Circuit Judge, and though the ground of such motion does not appear, we are willing to assume, in favor of liberty, that it was upon the ground that the words, “without living together,” were omitted from the indictment. In State v. Padgett (18 S. C., 321), it is said: “The rule in regard to indictments framed to cover offences created by statute, is that the offence should be set forth with clearness and certainty, and must be so described, if not in the very words of the statute, as to bring it substantially within the provisions of
The judgment of this court is, that the judgment of the Circuit Court be affirmed.