69 Ind. 85 | Ind. | 1879
The indictment against the appellee, in this ease, charged, “that on the 1st day.of July, 1879, and in the county of Grant and State of Indiana, one Enos Johnson, on said day, and on divers other days and times as well before as after that date, and previous to this presentment, at the house of said Enos Johnson, in Van Burén township, in said county and State, he, the said Enos
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 indictment.
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 appears upon its face,” in-. Ur alia, “that the facts stated do not constitute a public of-fence.” 2 R. S. 1876, p. 399. It is evident, we think, from the language used in the indictment, that it was intended to charge the appellee, therein and thereby, with the commission of the misdemeanor wrhich is defined and its punishment prescribed in section 21 of the misdemean- or act of June 14th, 1852, as the section was amended by an 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 fornication 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
In the case of Hood v. The State, 56 Ind. 263, this court 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
The judgment below is affirmed.