State v. Meyer, No. 24299

No. 24299 | Miss. | Jun 9, 1924

Ethridge, J.,

delivered the opinion of the court.

The appellees were indicted under section 1029, Code of 1906; section 754, Hemingway’s Code. .The indictment, omitting the formal parts, reads as follows:

“That Fritz Meyer, a man, and Ella Ford, a woman, late of the county of Adams, on the 24th day of March, 1924, in the county aforesaid, did willfully, lewdly and unlawfully cohabit together, and have habitual sexual intercourse with each other, they, the said Fritz Meyer and Ella Ford, not being then and there lawfully married to each other.”

This indictment was demurred to and the demurrer sustained, and the state appeals.

It was contended by the appellee and the court decided that the indictment was insufficient because the offense from its nature could not be committed on a single day, and it is argued here by the appellees that the time during which the alleged offense was committed must be set forth, that the time is of the essence, and that therefore the judgment of the court below was right.

We do not think that time is of the essence of the offense in this case and that section 1428, Code of 1906; section 1184, Hemingway’s Code, is applicable. This section reads as follows:

“An indictment for any offense shall not be insufficient for omitting to state the time at which the offense was committed in any case where time is not of the essence of the offense, nor for stating the time imperfectly, nor for stating the offense to have been committed on a day subsequent to the finding of the indictment, or on an impossible day, or on a day that never happened, nor for the want of a proper or perfect venue.”

In order for time to be of the essence of the offense, the crime must be committed during a particular time or on a particular day in order for it to be a crime at all. Such, for instance, as the violation of the Sunday law, the essence of the offense being that it was committed on Sunday, that being a crime because the violation was of the Sunday law. Of course, where any crime is dependent upon its commission on a particular day or during a particular part of a day, then that is of the essence of the offense and must be proven as charged. Here, however, the state could prove the offense to have been committed within two years prior to the finding of the indictment, and the proof could show such a continuation of acts as would make it a habitual act under the statute. The state could have averred a specific time as the beginning and ending of the period, and that might or might not have been for a period of two years or more. But it could prove under the charge here such acts as would make out the offense.

We therefore think the trial court was in error, and the judgment will be reversed and the cause remanded for further proceedings.

Reversed and remanded.

O.N Suggestion oe Error.

In the opinion delivered on a former day we reversed the judgment of the circuit court sustaining the demurrer and entered an order remanding the cause for further proceedings. A suggestion of error was filed, in which it was contended that we erred because we did not sustain the demurrer on the third count therein set forth, which is as follows:

“Said indictment fails to charge and'inform the defendant whether the unlawful cohabitation charged in said indictment was in adultery or fornication, and fails entirely to state which.”

The language of the indictment is: “Did willfully, lewdly, and unlawfully cohabit together, and have habitual sexual intercourse with each other; they, the said Fritz Meyer and Ella Ford, not being then and there lawfully married to each other. ’ ’

The contention is made that the cases of Kemp v. State, 121 Miss. 580" court="Miss." date_filed="1920-03-15" href="https://app.midpage.ai/document/kemp-v-state-7993577?utm_source=webapp" opinion_id="7993577">121 Miss. 580, 83 So. 744, and Jones v. State (Miss.), 98 So. 342" court="Miss." date_filed="1923-12-31" href="https://app.midpage.ai/document/toliver-v-state-7994758?utm_source=webapp" opinion_id="7994758">98 So. 342, carry the implication that it is necessary for the indictment to allege whether the unlawful cohabitation was in adultery or whether it was in fornication. In the Kemp case the court expressly reserved the decision on this point, stating:

“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.”

In that case the indictment expressly charged that the unlawful cohabitation was in adultery. Under well-known rules, where the state has charged in this way, the description becomes a part of the offense, and must be proven as alleged. In the case of Jones v. State, supra, the indictment did not allege that the parties had habitual sexual intercourse each with the other, neither did it allege that the cohabition was either in adultery or in fornication, and neither of these cases decide the point, either expressly or by necessary implication. In Newman v. State, 69 Miss. 393" court="Miss." date_filed="1891-10-15" href="https://app.midpage.ai/document/newman-v-state-7987150?utm_source=webapp" opinion_id="7987150">69 Miss. 393, 10 So. 580, it was expressly held that the gist of the offense is that the unlawful cohabitation consists of habitual acts of sexual intercourse. In the case before us'the indictment expressly charges that the parties did have habitual sexual intercourse with each other, this being the gist of the offense. It was not necessary to allege whether the intercourse was in adultery or in fornication, because under the statute either would be as effectual as the other, and, as the indictment does not specifically charge one or the other, it was not necessary for the same to be charged, as under the statute either is sufficient, where the acts become habitual.

The suggestion of error, therefore, will be overruled.

Overruled.