State v. JohnsonState v. Johnson
- Reporters:
- Before:
- Howk
Thе indictment against the appellee, in this ease, charged, “that on the 1st dаy.of July, 1879, and in the county of Grant and State of Indiana, one Enos Johnson, on said dаy, and on divers other days and times as well before as after that date, and рrevious to this presentment, at the house of said Enos Johnson, in Van Burén township, in said сounty and State, he, the said Enos *86Johnson, then and there being a single unmarried man, аnd Elizabeth C. Wadington, whose real name is to the grand jurors unknown, she being then and there an unmarried woman, and at all of said times the said Enos Johnson and Elizabeth C. Wadington, whose real name is unknown as aforesaid, not being married to each оther, did then and there during said time unlawfully live and cohabit together, as man and wife, contrary to the statute,” etc.
The appellee moved the court to quash this indictment, which motion was sustained, and to this decision the State, by its attorney, excepted, and the court discharged the appellee.
The State has appealed to this court and has here assigned, as error, the decision of the circuit court in sustaining appellee’s motion to quash the indiсtment.
Did the court err in quashing the indictment on appellee’s motion ? This is the only question in this case for the decision of this court. In section 101 of the criminal code of this State, it is provided that “The court may quash an indictment, on motion, when it аppears upon its face,” in-. Ur alia, “that the facts stated do not cоnstitute a public of-fence.” 2 R. S. 1876, p. 399. It is evident, we think, from the language used in the indictmеnt, that it was intended to charge the appellee, therein and thereby, with thе commission of the misdemeanor wrhich is defined and its punishment prescribed in seсtion 21 of the misdemean- or act of June 14th, 1852, as the section was amended by аn act‘approved March 9th, 1867. The section, as amended, reads as follows:
“ Sec. 21. Every person who shall live in open and notorious adultery or fоrnication shall be fined in any sum not exceeding one thousand dollars, and imprisoned not exceeding twelve months.” 2 R. S. 1876, p. 466; Acts 1867, p. 105.
If the indictment in the case now before us, with the *87preliminary allegations of fact therein in regard to the status and condition of the appellant and thе woman named, as individuals and towards each other, had closed with the chаrge that they did then and there, during said time, openly and notoriously live and cohаbit together, as man and wife, then the indictment would have stated the facts which constitute the offence under the statute, instead of a legal conclusion, and would have withstood the appellee’s motion. Under, the law of this State, it is not a public offence for any person to live in adultery or fornicаtion ; for, by the express terms of the statute, the adultery or the fornication must be open and notorious, and the person must live therein in that manner, else hе will not be guilty of the misdemeanor, nor liable to its punishment. It is contra bonos mores, and therefore unlawful, to live in adultery or fornication ; but, in this State, there are no common law offеnces. In section 2 of “An act declaring the law governing this State,” approved May 3lst, 1852, it is provided that “Crimes and misdemeanors shall be defined, and punishment therefor fixed, by statutes of this State, and not otherwise.” 1 R. S. 1876, p. 606. It will be observed that the seсtion of the misdemeanor act, above quoted, does not define either adultery or fornication ; but it declares, by the qualifying words “open and notorious,” what kind of adultery or fornication shall constitute a public offence.
In the case of Hood v. The State, 56 Ind. 263, this сourt judicially declared the definition of fornication as follows : “ Fornication is sexual intercourse between a man, married or single, and an unmarried woman.” It seems to u‘s that the indictment in this case charged that the appellant lived in fornication with the woman named therein ; but that it did not charge that such fornication was open and notorious, by the use either of those words or of *88equivalent Avords. Eor this reason Ave think that the indictment Avas insufficient, and the appellee’s motion to quash it was correctly sustained.
The judgment below is affirmed.