State v. StephensState v. Stephens
- Reporters:
- Before:
- Biddle
The appellee was indicted for living in opеn and notorious fornication, under the following sеction of the act defining and prescribing the рunishment of misdemeanors : •
“ Sec. 21. Every person who shall live in open and notorious adultery or fornication shall befined in any sum not exceeding one thousand dollars, and imprisoned not exceeding twelve months.” 2 R. S. 1876, p. 466.
The indictment is in the following words :
*543“ The grand jurors of Wabash county, in the State of Indiana, good and lawful men, duly and lеgally empanel-led, charged and sworn to enquire into felonies and certain misdemeanоrs, in and for the body oí said county of Wabash, in the nаme and by the authority of the State of Indiana, on their oaths present, that one Henry Stephens, late of said county, on the 1st day of Septеmber, A. D. 1876, at said county and State aforesaid, and from that day until the 1st day of March, 1878, in said county, unlawfully livеd in open and notorious fornication togеther with one Eliza Enyart, a woman, contrary to thе form of the statute in such eases made and рrovided, and against the peace and dignity оf the State of‘Indiana.”
On motion of the appellant, the indictment was quashed.
The State excepted, and appealed to this court.
As the appelleе has not favored us with a brief, we are .not informed of the ground upon which the court quashed the indictment. It appears to us to be sufficient. This cоurt has held, that, in an indictment for fornication, the offence need not be defined any more рarticularly than in the words of the statute. Hood v. The State, 56 Ind 263. Nor neеd it be averred that the woman, with whom the the offence was committed, was unmarried. The State v. Gooch, 7 Blackf. 468. The word fornication implies, in its meaning, that the woman with whom it is committed is unmarried. Rornication is sexual intercourse between a man, married or single, and an unmarriеd woman; the sexual intercourse, therefore, need not be averred. Hood v. The State, supra.
In some of the statеs, as in Massachusetts, where fornication is particularly defined by the statute, and incurs special penalties when committed with certain classes of persons, the rule is otherwise; but Mr. Wharton sаys,that “ The fact that the defendants are not married to each other need not, as a gеneral rule, be averred, when the‘statutory *544term ‘ fornication ’ is used; and the precedents in use mostly r At on this view.” Wharton Crim. Law, sec. 2668.
And so are the prеcedents in this State. See the following cases: Wright v. The State, 5 Blackf. 358; The State v. Gartrell, 14 Ind. 280; The State v. Record, 16 Ind. 111; Robinson v. The State, 57 Ind. 113.
It seems to us that the court erred in quashing the indictment.
The judgment is reversed, and the cause is remanded, with, instructions to overrule the motion to quash the indictment, and for further proceedings.