State v. Nicholas

124 Mo. App. 330 | Mo. Ct. App. | 1907

BLAND, P. J.

Defendants appealed from a verdict and judgment rendered against them in the Pemiscot Circuit Court, on the following information:

“L. L. Collins, prosecuting attorney, duly elected, commissioned, sworn, qualified, installed and acting as such in and for the county of Pemiscot, in the State of Missouri, upon his oath and upon his hereto appended oath, informs the court and upon his said oath and upon .his hereto appended oath does depose, present, aver and charge that defendant P. G. Nicholas and Fannie Nicholas on the first day of November, A. D. 1905, and from that date until the filing of this information at the said county of Pemiscot and state of Missouri, did then and there unlawfully, wrongfully and wilfully, live in a state of open and notorious adultery; and did then and there lewdly and lasciviously abide and cohabit with each other; and was then and there guilty of open, gross lewdness, and lascivious behavior, by then and there publicly, lewdly and lasciviously abiding and cohabiting with each other and habitually having sexual intercourse with each other and lying in a bed together, not being then and there married to each other, he, the said P. G-. Nicholas, being then and there a married man and having a wife living and she, the said Fannie Nicholas, being then and there a single and unmarried woman and not being the wife of him, the said P. G. Nicholas, contrary to the form of the statute in such cases made and provided, and against the peace and dignity of the state of Missouri.”

Defendant moved to quash the information, on the ground of duplicity, that is, that more than one offense was joined in the one count of the information.

1. The overruling of the motion to quash is assigned as error. In State v. Chandler, 132 Mo. 1. c. 160 1, 33 S. W. 797, Sherwood, J., said that the section (2175) on which the information is bottomed, “embraces five offenses: First, living in a state of open and notorious adultery by two persons of opposite sexes, one or both of Avhom.are married, but not to each other; second, a man and woman, one or both of whom are married, but not to each other, who lewdly and lasciviously abide and cohabit with each other; third, every person, married or unmarried, guilty of open, gross lewdness; or, fourth, lascivious behaviour; or, fifth, of any open, notorious act of public indecency, grossly scandalous.” Bishop says, “If the statute forbids a man and woman to live together in ‘adultery or fornication,’ both forms of the offense cannot be charged against them in one count by the use of either ‘and’ or ‘or’; because, first, the two things are repugnant; secondly, in this instance, the statute creates two offences.” [1 Bishop- on Criminal Procedure, sec. 587; Bishop on Stat. Crimes, sec. 701.] The information charges the defendants, first, with living “in a state of open and notorious adultery;” second, of “lewdly and lasciviously” abiding and cohabiting with each other; and, third, “of open, gross lewdness and lascivious behavior,” three separate and distinct offenses, all joined in one count. When different offenses, are charged in the same information, they must be stated in separate counts and each count must be complete in itself (State v. Wade, 147 Mo. 73, 47 S. W. 1070) and the-jury must respond to the whole case by finding a verdict on each count. [State v. Harmon, 106 Mo. 1. c. 657, 18 S. W. 128.] The motion to quash should have been sustained. Numerous other errors are pointed out in defendant’s brief, but as the information must be quashed, we deem it unnecessary to notice them.

The judgment is reversed and the cause remanded, ■with directions to the circuit court to set aside its order overruling the motion to quash and to sustain the motion and quash the information, ahd to grant the prosecuting attorney leave to file an amended information, if he is so advised.

All concur.