State v. Gibson

19 S.W. 980, 111 Mo. 92, 1892 Mo. LEXIS 127

• Court: Supreme Court of Missouri
• Decided: June 20, 1892
• Status: Published

Opinions

Sherwood, C. J.

The second count in the indictment in this cause is as follows: ‘ ‘And the grand j urors aforesaid, upon their oaths aforesaid, do further present and charge that Larkin A. Gibson, William Gibson and James Gibson, on the seventh day of April, 1889, at the said county of Harrison, one Ada E. Dyche, a female under the age of eighteen years, to-wit, of the age of fifteen years,' unlawfully and feloniously did take from one William Dyche, her father; he, the said William Dyche, then and there having the legal charge of the person of said Ada E. Dyche, without the consent and against the will of the said William Dyche, for the purpose of concubinage, by having illicit sexual intercourse with him, the said Larkin A. Gribson, and with him, the said William Gribson, and with him, the said James Gribson, and with divers other men whose names are to the grand jurors aforesaid unknown, against the peace and dignity of the state.”

This indictment is bottomed on section 3484, Revised Statutes, 1889, which is as follows: “Every person who shall take away any female under the age of eighteen years from her father, mother, guardian or other person having the legal charge of her person, either for the purpose of prostitution or concubinage, and any father, mother, guardian or other person, having the legal charge of her person, who shall consent to the same, shall, upon conviction thereof, be punished by imprisonment in the penitentiary not exceeding five years.”

Upon trial had, the defendant was found guilty, and his punishment assessed at imprisonment in the penitentiary for the term of four years.

The second instruction given at the instance of the state was the following: “The jury are instructed that by the word ‘concubinage,’ as used in the indictment and instructions, is meant the act or practice of a man cohabiting in sexual intercourse with a woman to whom he is not married. If the jury should believe from the evidence that the defendant, either alone or in connection with another, did take the witness, Addie E. Dyche, away from her father without his consent, and that Addie E. Dyche was at the time a female under the age of eighteen years, for the purpose of cohabiting with her as man and woman in sexual intercourse, either for himself, or for another, for any length of time, even for a single act of sexual intercourse, without the authority of a marriage, it would be sufficient to constitute the offense charged in the second count of the indictment.”

I. This instruction necessitates the determination of the meaning of the word “concubinage

Under the provisions of our statute “words and phrases shall be taken in their plain or ordinary and usual sense, but technical words and phrases having a peculiar' and appropriate meaning in law shall be understood according to their technical import.” 2 Revised Statutes, 1889, sec. 6570.

If, as we take it, the word employed is to be taken in its ordinary sense, in the popular acceptation of the term, we must turn to the standards of our language in order to ascertain the accepted meaning of the term. "When we do this, we find that concubinage is defined by Webster to be “the cohabiting of a man and a woman who are not legally married; the state of being a concubine.” And in turning to the word “cohabit” we find that one of its prominent meanings is “to dwell or live together as husband and wife.” And Webster also defines “concubine” as “a woman who cohabits with a man without being his wife.”

On turning to the law dictionaries, we find concubinage defined, as “a species of loose informal marriage which took place among the ancients, and which is yet in use in some countries.” Black’s Law Dictionary; Wharton’s Law Dictionary; Bouvier’s Law Dictionary.

It is well enough, in this connection, to place in juxtaposition and in sharp contrast with the word, concubinage, the other word the section in question employs, “prostitution,” which is defined by Webster: “The act or practice of prostituting or offering the body to an indiscriminate intercourse with men; common lewdness of a female.” And in the legal authorities the term is defined as: “The common lewdness of a woman for gain. The act of permitting a common and indiscriminate sexual intercourse for hire.” 2 Bouvier’s Law Dictionary; Com. v. Cook, 12 Met. 97.

Thus contrasted it is easy to see that the two words, concubinage and prostitution, have and were intended to have a widely different meaning. To hold otherwise would be to say that the two words mean the same thing, and that, therefore, the legislature in framing the section under discussion employed a useless and meaningless word, which is a supposition not to be indulged, as abundant authorities show. The section in question levels its denunciations against two separate and distinct offenses, offenses which, therefore, cannot be' joined in one count, but, if charged, according to a familiar rule, must be charged in separate counts.

This view finds illustration in the state of Kansas, having a section precisely like ours, barring the portion marked with brackets; and there it'was held that an indictment which joined the two offenses, a taking for the purpose of prostitution and concubinage, was by reason of such joinder fatally defective, Houton, C. J., remarking: “If the appellant took the female away for the purpose of prostitution, he did so for the purpose of devoting her to infamous purposes; that is, of offering her body to indiscriminate intercourse with men. If he took her away for concubinage only, then his purpose was to cohabit with her in sexual commerce, * without the authority of law or a legal marriage.” State v. Goodwin, 33 Kan. 538. This ruling entirely coincides with definitions already quoted.

The state of Illinois possesses a statute substantially identical with our own, and the practice there is, when charging the offenses of taking for the purpose of concubinage and of taking for the purpose of prostitution, to charge each of these offenses in a separate count. Slocum v. People, 90 Ill. 274; Henderson v. People, 124 Ill. 607. In the latter case cited, it is said that the words in question “are in general use, and we have no doubt they were used by the legislature in their general _ or popular signification.”

But every temporary absenting of a girl from the house of her parents, though it be at the instance of the accused, and for the purpose of sexual intercourse with him, does not constitute the act a taking within the purview of the statute. The taking in order to be a taking under the statutory prohibitions must befor one of two purposes, either for the purpose of concubinage, or else for the purpose of prostitution,' and not for a mere momentary gratification; or as was interrogatively said by Crompton, J., where the offense was based ■on a similar statute: “If a man make a sign to a girl in her father’s cottage, and she comes out and goes away with him for a short time, would that be within the section?” Reg. v. Timmins, 8 Cox’s Cr. L. Cas. 401. To hold otherwise would be to do violence to the language in question, and create an offense unknown to the law. See People v. Parshall, 6 Parker’s Crim. Rep. 129, in which case the statute of New York then passed upon is substantially like our own. Seduction or attempted seduction is not within the prohibitions of the section. Indeed, the sexual act is not at all necessary to the com- * mission of the crime under discussion; for the abduction may be done by a woman as well as a man. “The gravamen of the offense is the purpose or intent with which the enticing and abduction is done” (Henderson v. People and Slocum v. People, supra); and the offense is complete whenever the abduction for the prohibited purpose is complete, no matter whether any sexual intercourse result or not.

The section being discussed does not prohibit mere sexual intercourse; it only prohibits the taking away of a girl where the taking has in contemplation such sexual intercourse as the ultimate result. and concomitant of concubinage or of prostitution. Several cases will now be cited which support the view that a mere intent to obtain sexual gratification will not support a charge of a taking away for the purpose of prostitution. Osborn v. State, 52 Ind. 526; Com. v. Cook, 12 Met. 93; State v. Ruhl, 8 Iowa, 447; State v. Stoyell, 54 Mo. 24; Carpenter v. People, 8 Barb. 603; State v. Brow, 64 N. H. 577. These cases though directed against the offense of taking for the purpose of prostitution by parity of reasoning support the theory already advanced that a taking for sexual gratification does not fall within •the prohibitions of the statute, unless such sexual result be blended with either concubinage or prostitution as its ultimate end and object. And the rule is firmly established, indeed it is elementary, that, where as here the statute makes an offense to consist of an act coupled with-a specific intent, the doing of the act raises no presumption that the act was done with the specific intent; but such intent, as well as the act, must be found by the jury as a matter of fact before a conviction can legitimately result. Lawson on Presumptive Evidence, 271; People v. Plath, 100 N. Y. 590.

Under the foregoing authorities and all reasonable deductions therefrom, proof of a purpose to have sexual connection, or of the fact accomplished, would not support a charge of a purpose of concubinage or of prostitution, nor would proof of a purpose of prostitution sustain a charge of a purpose of concubinage, nor vice versa.

These remarks have been thus extended and authorities cited, not as doubting the correctness of the position they sanction, but because of a ruling made by this court in State v. Feasel, 74 Mo. 524, where a similar instruction to the one under discussion was approved. Indeed, the instruction in this instance is even broader in its terms than the one in the case cited; for here if the taking was for the purpose of cohabiting with the girl, “even for a single act of sexual intercourse,” the jury were told the offense was complete.

After full consideration we are satisfied, for reasons already given, that Feasel’s case was erroneously decided as to the instruction there commented on, and that case, therefore, should no longer be followed. State v. Flint, 62 Mo. 393.

II. Now, as to the sufficiency of the second count of the indictment. If the definition heretofore given as to the meaning, the force and effect of the word “concubinage” be correct, then it stands to reason that the indictment charges no offense known to the law, or, in other words, an impossible offense; for it is plainly impossible that three men could each have the same girl for his “concubine.”

In this case, the charges contained in the count are, therefore, necessarily inconsistent with, contradictory of and repugnant to each other; this repugnancy in the same count makes the whole count bad. 1 Archbold on Criminal Practice & Pleading [8 Ed.] 284; State v. Mahan, 2 Ala. 340; King v. Stevens, 5 East, 244; State v. Flint, 62 Mo. 393; 1 Bishop on Criminal Procedure [3 Ed.] secs. 489-492.

There are cases where the contradictory or repugnant expressions do not enter into the substance of the offense, and where the indictment will be good without them they may be rejected as surplusage. State v. Meyers, 99 Mo. 107. Or, where the repugnant matter is inconsistent with any preceding averment, it may be rejected as superfluous. 1 Bishop on Criminal Procedure, sec. 491. Here, the repugnant matters go to the substance of the offense, and are descriptive of it, and, hence, cannot be rejected as merely redundant expressions, since they are essential. 1 Chitty on Criminal Law, 250; 1 Bishop on Criminal Procedure, sec. 491. The indictment must in consequence be held fatally defective.

III. An instruction asked by the defendant in the nature of a demurrer to the evidence was refused, and this requires a review of that ruling. We have been unable to discover any evidence in this record disclosing that the defendant had formed any design or any conspiracy with his father, Larkin A. Gibson, and with his brother, James Gibson, to take away Ada E. Dyche from her father, for the purpose of concubinage, the intent charged in the indictment. Ada E. Dyche does not claim that, prior to the time that she reached Larkin A. Gibson’s house, she expected defendant to take her away. She says she went to Larkin A. Gibson’s house because he had promised to take her away. But this taking away was for the purpose, as she testifies, of sending her to school.

When she arrived at Larkin Gibson’s, he was not at home; but the defendant and his brother' John C. were, and she asked him to take her away, and he told her as she states that he had not agreed to take her away, but his father had, and this is the only evidence that the defendant even knew that she was to be taken away; but she does not pretend that the defendant knew she was to be taken away for any improper purpose. It is true, the defendant, on the night of her arrival, took her away at his father’s instance to another relative some seven miles distant, and that they stopped by the wayside and exchanged sexual favors; but this was the first aud only time he ever had to do with her in this sort, and it is true, also, that some days afterwards he called and took her to Des Moines; but she states that it was the original intention that his father was to call for and to take her to Des Moines, but instead of that sent his son, the defendant, who took her there and paid her way, and though he took her to a hotel never had, nor attempted to have, sexual intercourse with her again. It is true, also, that Larkin A. Gribson, the father, and James Gribson, the son, afterwards went up into Iowa, and had sexual intercourse twice with the girl; but defendant had no connection with these subsequent acts. ^ And the mere fact that the defendant had sexual intercourse with the girl on the way to his uncle’s is no evidence, whatever, that he intended to make her his concubine, or the concubine of another. This point was so ruled in State v. Gibson, decided at the last term, in division number 2 of this court. 108 Mo. 575.

Besides, as before stated, where, as here, a specific intent is required to make an act an offense, to-wit, the taking away of the girl for the purpose of concubinage, the mere doing of the act will not raise a presumption that it was done for such prohibited purpose. Lawson on Presumptive Evidence, and People v. Plath, supra.

. But granting for argument’s sake that there is evidence in this record making out an apparent case against the defendant of a violation of the statute, still there are other considerations which will infallibly overthrow such prima facie case.

The defendant, at the time of the offense charged, was some twenty-three years of age. -His younger brother “Jim” was only fifteen years of age, and had become strangely infatuated with the girl, and she with him, and they became criminally intimate and had tasted of the forbidden fruit on many and divers occasions. There is much testimony in this record to show that the object of spiriting the girl away was to break up the intimacy which had sprung up between# the younger brother and the prosecutrix; and there was much evidence to show, — indeed, the great preponderance of the testimony tends to show, that neither Ada Dyche nor her sister were chaste, either in reputation or in character. In proof of this, the prosecutrix testified, when on the stand that Henry Gilbert, a school teacher, came upon “Jim” Gibson and herself at night, when he was trying to have sexual intercourse with her, when at that time her sister and her escort, Sego, were only a few feet away “talking. ” And her sister also testifies that both Jim Gibson and the prosecutrix told her they were “trying,” i. e., making efforts, to have sexual intercourse. Statutes of other states, which punish abduction of females, require that such females should be of “previous chaste character.”

Our statute does not in terms require a previous chaste character; but it seems that such a requirement is necessarily included in a definition of the offense. This view becomes very obvious when you consider the evident purpose and central idea of the statute. That purpose is evidently a prophylactic purpose. The intention of the statute was to prevent virtuous girls under a certain age from being taken away from under parental or other legitimate control, and converted into concubines or prostitutes. If, however, before being thus taken away a girl has already lost her virtue, she is not within the protection of the statute; it came to save the virtuous, not the unchaste and the harlot. Of this opinion is Judge Kelley, as to the force and effect of our statute. Criminal Law, sec. 519. See also Reg. v. Primelt, 1 F. & F. 50.

As to the analogies of the law in cases of seduction, see State v. Patterson, 88 Mo. 88; State v. Primm, 98 Mo. 368.

» Five weeks and two days after the prosecutrix had left home and gone to Iowa, she returned' and sought and found refuge at Larkin A. Gibson’s house.

If the defendant at that time did anything to conceal the girl from her father, this could have no effect towards showing his guilt in the original taking; for that was complete before the occurrence of the alleged subsequent act. State v. Melrose, 98 Mo. 594.

There are a number of other errors assigned, but it is unnecessary to notice them, in consequence of remarks already made. The judgment should be reversed, and the defendant discharged.

Brace and G-antt, JJ., concur in all that has been said, except in paragraph 4; Black and Macearlane, JJ., concur in nothing that has been said except in paragraph 3; Thomas, J., files a separate and dissenting opinion, and Barclay, J., is absent.