Opinion
(July Term, 1817.)
A man may be indicted separately under the act of 1805 (1 Rev. Stat., ch. 34, sec. 46) for fornication and adultery.
THE defendant was indicted under the act of 1805, ch. 14, for bedding and cohabitating with a woman of the name of Hawkins. A motion was made to quash the indictment because the woman was not joined with the defendant in the charge.
The case was submitted without argument.
This question has been much discussed in the Superior Courts, and it is time that the law should be understood by the community, for I believe that no judgment has been passed in any case where the objection was taken. I have resolved in my mind the several arguments I have heard against indicting the man separately, but they do not satisfy me that the proceeding is wrong, or that any principle of justice or legal analogy is in danger of violation by it. (598)
The first proof in support of the indictment may be derived from the act itself, which provides "that the evidence of the person who may be particeps criminis shall not be admitted to charge any defendant under this act." This contemplates a separate charge, because it speaks of a particeps criminis as contradistinguished from a defendant. If a joint indictment had been in the view of the Legislature, the provision would have been nugatory and superfluous; for then one defendant could not have been a witness against the other. 2 Campbell's N. P., 233.
Secondly. A separate charge is supported by the analogy of other cases. A judgment may be given against one defendant in a conspiracy before the other is tried. 1 Strange, 193. So one conspirator may be convicted after the other is dead. 2 Str., 1227. Persons have been tried and convicted of the crime against nature, though the agent was separately charged, and the offense could not have been committed without the concurrence of the patient. Republica v. Rocerts, 1 Dall., 124, is directly in point. The defendant was indicted separately for adultery. He was not, it is true, convicted of that offense, because it appeared that he was not married; and they have a notion there, different from what the books teach us, that both parties must be married in order to commit that crime; but judgment was given against him for fornication. Lastly, the reasoning of the Court, in De Costa v. Jones, Cowper, 736, manifestly shows that wherever a question arises upon a real matter of right, though the interest or feelings of third persons, not parties, may be affected by it, it shall be tried. The action in that case was held not to lie upon a voluntary wager upon the sex of a third person, not parties, may be affected by reasons, it tended to disturb his peace. But there is a wide difference between affecting the feelings of a third person by an idle wager, and by a grave inquiry into a public misdemeanor. The quiet of a man's mind should not be at the mercy of indifferent persons, to gratify their avarice or beguile their idleness; yet occasions arise when it must yield to the necessity of deciding civil and criminal rights. (599)
The indictment states that the defendant Hawkins Cox unlawfully bedded and cohabited with a certain woman by the name of Hawkins, contrary to the act of the General Assembly in such case made and provided. I do not consider the law requires both parties to be before the court and put upon their trial at the same time in order to support an indictment under this act. I discover nothing in the wording of the act to authorize such a construction. There are some cases in the books which go to prove the defendant may be thus prosecuted. Stra., 193, Rex v. Kinnersley and Moore. They were indicted for a conspiracy; and Kinnersley only was tried and found guilty. A motion was made in arrest of judgment because one only was found guilty, when the law requires two persons at least to form a conspiracy. It was answered, and so held by the Court, that as the case stood both were found guilty, although Moore was not, as Kinnersley was, concluded by the verdict. And so judgment may be given against one before the trial of the other. So one may be indicted and punished for a riot, if it is said to have been done by him, cum multis aliis. 3 Burr., 1263; 1 Ld. Ray., 484; 2 Salk., 593.
The possibility that some evil disposed man might procure himself to be indicted for fornication with some good and virtuous woman, I think, is too remote to govern this case. The penalty which would fall on the defendant by virtue of this act, the grand jury, the State's officer, the court, and her friends, would, in my opinion, be sufficient guards to protect her from such an outrage.
The motion to quash overruled.
HALL, J., LOWRIE, J., and RUFFIN, J., concurred in overruling the motion to quash.
SEAWELL, J., dissented.
(600)