170 Mo. App. 183 | Mo. Ct. App. | 1913
Appellants were prosecuted and convicted in the Butler County Circuit Court upon an indictment under section 4729, Revised Statutes 1909, the statute leveled against adultery. The verdict of the jury was as follows.: “We, the jury, find the defendants guilty as charged and assess their punishment at one hundred dollars and ten days in the county jail.” The judgment followed the form of the verdict. The vedict and judgment were erroneous. The statute (Sec. 5252, R. S. 1909) plainly requires that when several defendants are jointly tried, the punishment of each, in case of conviction, must be assessed separately. The court should either have refused to accept the verdict and suggested its being put in proper form, or failing in this, should itself have assessed and declared the punishment which -the jury by their defective verdict failed to do. [State v. Gordon, 153 Mo. 576, 55 S. W. 76; State v. Thornhill, 174 Mo. l. c. 371, 74 S. W. 832; State v. Person, 234 Mo. l. c. 268, 136 S. W. 296.] For this cause, the judgment must be reversed and the cause remanded with directions to the trial court to bring the defendants before it, and having done so, to proceed to assess and declare their
Other contentions of vital importance are urged in appellants’ brief and require careful consideration.
Does the indictment charge an offense!
The second count charges that defendants, not being married to each other, during the same time mention in the first count did “unlawfully, lewdly and lasciviously abide and cohabit with each other, and then and there have sexual intercourse together,” followed by the allegation that George W. Hicks was a married man and Laura Maloy an unmarried woman.
The statute (Sec. 4729, R. S. 1909) is said to embrace five offenses (State v. Chandler, 132 Mo. l. c. 160, 33 S. W. 979; State v. Sekrit, 130 Mo. l. c. 405, 32 S. W. 977; State v. Nicholas, 124 Mo. App. l. c. 332, 101 S. W. 618), the first of which is stated by Sheuwood, J., to be as follows: “Living in a state of open and notorious adultery by two persons of opposite sexes, one or both of whom are married, but not to each other.” In the case of State v. Sekrit it was held that an indictment for adultery, must, in order to be valid, bring the accused within all the material words of the statute and nothing must be left to intendment, citing State v. Hayward, 83 Mo. 299. In the Sekrit case the only words used were, “unlawfully, shamefully and habitually having sexual intercourse together” followed by the charge that both parties were married but not to each other. Hence there was obviously an insufficiency of language to charge an offense under the first subdivision of the adultery statute. But in the case before us all the material
No objection was made to the indictment until the motion in arrest of judgment was filed. If defendants thought the counts were duplicitous, they should have raised the objection at the proper time; it is not available to them in the motion in arrest (State v. Sherman, 137 Mo. App. 70, 73, 119 S. W. 479; State v. Niehaus, 217 Mo. 332, 117 S. W. 73); and they have not sufficiently raised it there. We think the first count of the indictment sufficiently charged an offense contemplated by the first subdivision of the adultery statute and is invulnerable to attack after verdict.
The second count is obviously intended to charge the offense embraced within the second subdivision of the statute, and while there is surplusage also in this charge, all the material words were used.
It is contended that each count of the indictment charges a distinct and different offense, that there is no authority for uniting such counts in the same in-dietment„and that for this reason the motion in arrest should have been sustained. We find nothing in that motion which goes to this point unless it be the following: “Because the record is erroneous upon its face.” As a general rule, where offenses are several, distinct', and independent, there can be no joinder. [State v. Daubert, 42 Mo. l. c. 245; State v. Sutton, 64 Mo. l. c. 108.] But where all the counts relate to the same transaction, the prosecution is not bound to elect as to which count on which it will proceed, but may adapt itself to the exigencies of the case. [State v. Pratt, 98 Mo. 482, 11 S. W. 977.] In State v. Houx, 109 Mo. l. c. 660, 19 S. W. 35, the Supreme Court said: “The two counts in this indictment relate to the same transaction, that of unlawfully and feloniously having carnal knowledge of the complaining witness. The
Appellants’ principal contention is that all the essential elements of the offense embraced in the first subdivision of the adultery statute are disproved in this case, and that the court erred in not sustaining defendants’ request for a directed verdict.
The rule as to the quantum of proof required to make out this offense is found stated in the following-cases : State v. Crowner, 56 Mo. 147; State v. Sekrit and State v. Chandler, supra. But it has been recognized by judicial decision in this State that the offense of adultery is one which from its nature is almost necessarily and almost entirely provable by circumstantial evidence; and that where a fact, like adultery, is to be established by circumstantial evidence, all surrounding circumstances are proper to be weighed by the jury, if they have any bearing whatever on the ultimate fact sought to be established. [State v. Clawson, 32 Mo. App. 93; State v. Coffee, 75 Mo. App. l. c. 91, 92.]
It is deemed necessary to set forth a running summary of the testimony of the State’s witnesses. Marion Micks, brother of defendant ITicks, testified that he lived near the place where his brother and Laura Maloy resided; that Laura Maloy had been married, but her husband was dead; that defendant Hicks was running the farm on which she resided and that he was there part of the time — working there sometimes
H. L. Jett who resided about a mile and a half from the Maloy place, testified: “Q. Isn’t it a fact of general notoriety among the people that they do live together in adultery? A. Why, the people claim that they do. Q. Within the past twelve months? A. Well, now, I haven’t heard much about it in the last twelve months; that is, about their living together in the last twelve months. Q. Have you heard of their relations in that regard ceasing? Is that a matter of notoriety? A. No, sir; I haven’t heard anything about that. ’ ’
J. J. Franh, an undertaker, testified that defendant Hicks came to his establishment on September 19, 1910, and bought a coffin for a child two years old and gave the name of the child as Laura Bell Hicks; that he said he had every reason to believe the child was his, and told about living with this woman. “Q. I will ask you if he did not state to you that his wife objected to him living with her? A. He told me his wife objected to him staying up there; but I don’t remember whether he said living with her or not. Q. Well, staying up there with this other woman? A. Yes, sir. Q. The mother of this child? A. Yes, sir. Q. What did he say, if anything, with reference to his living or staying part of the time with the one
Ernest Bacon, owner of the farm referred to as the Maloy place, testified that he had leased the place to defendant Hicks and that the latter was living on the place and told him the woman was his cook and was cooking for his hands; that he asked defendant Hicks who the children belonged to, and that Hicks langhed and said two of them were his and that this woman Lanra Maloy was the mother of them; that within twelve months before the trial defendant Hicks told him that he was going to live with her if he wanted to, that he was going to take care of those children, that they were his, and that he was going to live with the woman — “couldn’t stop him.”
Both of the defendants admitted in their testimony that prior to about three years before the trial they had been guilty of occasional illicit sexual intercourse, and that as a result two or three children were born, but that nothing of the kind had occurred between them during the time covered by the indictment. Defendants, however, objected strenuously to this past relationship being brought out by the State’s witnesses.
The State’s evidence has been set forth at some length in order to show how closely in matters material this case resembles that of State v. Coffee, 75 Mo. App. 88. Following that case, we hold there was sufficient evidence in this record to uphold the verdict and it does not lie in our power to interfere. It was competent for the jury to consider the past intimacy (Linck v. Vorhauer, 104 Mo. App. l. c. 374, 79 S. W. 478). With an admission of the defendants that the children were the offspring of their illicit intercourse in the past, and the apparent continuation of the same relation during the year covered by the indictment so
Let the order be entered as stated in the first paragraph of this opinion; and, as in the case of State v. Person, supra, it is ordered that the defendants recover only the costs of this appeal.