King v. People

4 Colo. L. Rep. 498

• Court: Supreme Court of Colorado
• Decided: February 29, 1884
• Status: Published

Opinion

Per Ouriam.

The first assignment of error requires no argument from us; it is answered by the indictment itself. The offense is charged jointly; the language is, “that Theodore King * * * and one Martha Estes, did then and there unlawfully live together in an open state of fornication.” This is substantially the language of the statute. In Delany v. The People, 10 Mich., 241, cited and relied on by counsel, the information charged that Thomas Delany * * * "did lewdly and lasciviously associate and cohabit with Mary Stewart.” The Court held that Mary Stewart could not be convicted of the statutory offense upon this information, and hence Delany could not; that the offense was made joint by statute and each must not only join in the act, or acts, but that both must do so “lewdly and lasciviously,” or neither could be convicted; and therefore the information must charge them jointly. This conclusion concerning the indictment or information is not un-contradicted. See Bishop on Stat. Crimes, Sec. 708, and cases.

But as already observed, the objection, even if available in a proper case, is without foundation in the one before us.

The assignment based upon error in the admission of testimony is not well taken. Counsel admit that “if there had been any evidence of any overt act of plaintiff in error in connection with Martha Estes,” the evidence of which they complain was proper.

The witness, Campbell, testifies as follows: “King told me after the indictment was found, that he did not see, as she was a public woman, why he should be prosecuted for sleeping with her, any more than other men who went to the row and slept with other women.” No testimony was offered contradicting this witness or questioning the foregoing statement made by him.

Post & Smith, for plaintiff in error. D. F. Urmy, Attorney General, for the people.

We are not advised of counsel’s views as to what proof would be sufficient to establish the “overt act,” as they term it; but -in our judgment, the Court below and jury were not far astray in considering this undisputed evidence as ample to dispel any doubt upon the question.

These are the only objections we deem it necessary to notice.

The judgment will be affirmed. Affirmed.