State v. Tingle

60 So. 728 | Miss. | 1912

Cook, J.,

delivered tbe opinion of tbe court.

Tbe circuit court of Neshoba county sustained a demurrer to an indictment preferred against appellee by tbe grand jury of that county, which, omitting tbe formal part, is as follows: “N. W. Tingle, late of tbe county aforesaid, on tbe-day of-, A. D. 1909, with force and arms in tbe county aforesaid, and within tbe jurisdiction of tbis court, did unlawfully and willfully, under and by virtue of a feigned promise of marriage, obtain carnal knowledge of Miss Ida Clark, a female over the age of eighteen years, she being a previous chate character; and the said N. W. Tingle, by virtue as aforesaid of said feigned promise of marriage, did, unlawfully and feloniously, carnally know her, the said Miss Ida Clark, contrary to the statute in such cases made and provided, and against the peace and dignity of the state of Mississippi. ’ ’

The grounds of demurrer are these: “(1) That the said indictment fails to charge that the promise of marrigae was feloniously made. (2) Because the indictment fails to charge the feigned promise of marriage made by defendant was made to Miss Ida Clark, or to any other person named in the said indictment. (3) Because the said indictment fails to charge the feigned promise of marriage was made to a single woman. (4) Because the said indictment fails to allege that the commission of the crime, of which defendant is charged, was committed within two years prior to the finding of the indictment, if committed at all. (5) Because the said indictment is marked and filed, and charges upon the back of same the crime of embezzlement, when the body of the indictment undertakes and seeks to charge the crime of seduction. ”

The first ground of demurrer is without merit, for the indictment charges a feigned promise of marriage; and. by virtue of the feigned promise, defendant did “unlawfully and feloniously carnally know her.” The 'indictment alleges clearly the artifice employed to accomplish the seduction, and further the felonious character, of the carnal knowledge.

In Ferguson v. State, 71 Miss. 805, 15 South. 66, 42 Am. St. Rep. 492, this court has disposed of the third ground of the demurrér.

"We think the fourth ground is not maintainable. Carlisle v. State, 73 Miss. 387, 19 South. 207; section 1426. Code of 1906.

The fifth ground is entirely without merit. The indictment was properly filed, and the crime charged is in no way changed or affected by what was written on the back of the paper; this was a mere memorandum, and forms no part of the indictment.

The second ground of demurrer presents some difficulty, on account of some of the language used by this court in Norton v. State, 72 Miss. 130, 16 South. 264, 48 Am. St. Rep. 538. That case has been carefully considered, and we are of opinion that the language relied on to support the action of the trial court in sustaining the demurrer formed no part of the real decision of the court. "While it is true the opinion says, “If a demurrer had been interposed below, it should .have' been sustained, ’ ’ but, as a demurrer was not before the court, the quoted language can have no weight as a precedent; it being merely the dicta of an eminent lawyer and distinguished judge. “Dicta are opinions of a judge which do not embody the resolution or determination of the court, and, made without argument or full consideration of the point, are not the professed deliberate determination of the judge himself; obiter dicta-are opinions uttered by the way, not upon the point or question pending, as if turning aside for the time from the main topic of the case to collateral subjects.” Black’s Daw óf Judicial Precedents, p. 167.

In discussing the question before the court for its decision, Judge Whiteield, speaking for the court, used this language: “We think this is a very defective allegation in the particular under consideration; hut still there is, by necessary implication, the allegation that the promise was one made by defendant to Katie Douglass. No other construction, not too fanciful to serve as the basis of a judgment of reversal, can be made. . . There can be no sound and satisfactory meaning given to this allegation, looking to the whole indictment, other than that the promise in question was one made by defendant to Katie Douglass, defective as the allegation manifestly is.” The latter sentence clearly and forcibly expresses our construction of the allegation of the indictment in the present case, and necessarily renders the indictment good, whether the point be raised by demurrer or motion to quash. It is difficult to perceive how the statute, by judicial consideration, can be held to mean, by necessary implication, that the promise of marriage must be made to the female seduced, and at. the same time that a charge preferred by indictment in the very language of the statute does not sufficiently advise the person indicted of what the state proposes to prove under the indictment.

If the court knows what the language of the statute means, it necessarily speaks the same language to all. whether they be lawyers, judges, or ordinary citizens.

Reversed and remanded.