189 Ind. 205 | Ind. | 1918
The appellant was tried by a jury and convicted on an indictment returned by the grand jury of Rush county, charging him with living and cohabiting in a state of adultery with one Blanche Alsman, a married woman.
From a judgment on the verdict the appellant appeals and assigns as error: (1) That the trial court erred in ovérruling appellant’s motion to quash the indictment. (2) The trial court erred in overruling appellant’s motion for a new trial.
The charging part of the indictment reads as follows: “That one John B. Tribbey, then and there a man late of said county, on the 26th day of December, 1918, at said county and state aforesaid, and at divers times previous to this presentment, and Blanche Alsman, then and there a married woman, and the said parties not being married to each other, did then and there unlawfully live and cohabit together in a state of adultery.”
This indictment is based on §2353 Burns 1914, Acts 1905 p. 584, §457, which provides that: “Whoever cohabits with another in a state of adultery or fornica
In the instant case the evidence most favorable to the state is to the effect that Thomas 'Alsman is the husband of Blanche Alsman, the woman with whom appellant is alleged to have cohabited' in a state of adultery, and during the time covered by this indictment the said Thomas Alsman and Blanche Alsman were living together as husband and - wife with their two children, oiie six years old and one eight years old, in the city of Rushville; that they had known the appellant for many years; that the appellant would frequently call at the Alsman home,
The evidence wholly fails to show that the appellant and Blanche Alsman ever cohabited in the sense in which that word is used in the statute. There is a total failure of evidence tending to show that they ever dwelt together for any period of time; in fact, the evidence shows affirmatively that they did not so dwell together. There being an entire absence of evidence as to one essential element of the offense charged, the verdict is not sustained by sufficient evidence, and is contrary to law.
Judgment reversed, and the Rush circuit court directed to sustain appellant’s motion for a new trial.