59 Neb. 269 | Neb. | 1899
William J. Sweenie was convicted and sentenced under that provision of section 208 of the Criminal Code which makes it unlawful for any unmarried man to “live and cohabit with a married woman in a state of adultery.” One of the assignments of error is based on the fact that the court, during the progress of the trial, permitted the prosecuting attorney to indorse on the information the name of Louis Straka, who, being after-wards called as a witness, gave material testimony i behalf of the state. The statute makes it the duty of the public prosecutor to indorse on the information at the time of filing the same the names of the witnesses by whom he expects to prove the crime charged, and it is further declared that “at such time before trial of any case as the court may, by rule or otherwise prescribe, he shall indorse thereon the names of such other witnesses as shall then be known to him.” By the evident import of the language quoted the authority to indorse the names of witnesses on the information does not extend beyond the commencement of the trial. “There is no hardship in this rule,” says Maxwell, C. J., in Stevens v. State, 19 Nebr., 647, “and it is clearly in furtherance of a fair trial, and, being a provision of the statute, it can not be disregarded.” Other cases affirming this view are: Parks v. State, 20 Nebr., 515; Gandy v. State, 24 Nebr., 716; Miller v. State, 29 Nebr., 437; Rauschkolb v. State, 46 Nebr., 658; Fager v. State, 49 Nebr., 439. The reception of Straka’s testimony, over defendant’s objection, was, therefore, reversible error.
It is conceded that Anna Lissa, with whom it is claimed the alleged crime was committed, lived as a servant in defendant’s home during the period in question. This fact, together with the dissolute character of the woman and the testimony of her discarded paramour, tending to show the commission of a single adulterous act, constituted the salient features of the state’s
It is contended by defendant that the statute does not cover cases like the one at bar. We think it does. We think the legislature intended by sections 208 and 209 of the Criminal Code to make it unlawful for persons not joined together in wedlock to live in a state of adultery or fornication, either secretly or openly, and whether they profess to live in the marital state or not. If they cohabit, if they live after the fashion of husband and wife, they are within the letter of the statute, and, likewise, it seems to us, within its spirit. .Such seems to be the view taken in State v. Way, 5 Nebr., 283, where it is said by Gantt, J-., in the course of the opinion: “To cohabit, according to the sense in which the word is used in the statute, means dwelling together as husband and wife, or in sexual intercourse.” See, also, Clark, Criminal Law, p. 318; Carotti v. State, 42 Miss., 334; Luster v. State, 23 Fla., 339; Commonwealth v. Leindsey, 10 Mass., 153; Wright v. Stewart, 5 Blackf. [Ind.], 126.
It is further contended that the provision of the statute under which the prosecution was instituted is void for uncertainty, since there is no legislative definition of “a state of adultery.” The contention is obviously without merit, and is only mentioned here to avoid the inference that it may have been entirely overlooked. The judgment of the district court is reversed, and the cause remanded.
Reversed and remanded.