State v. Gooch

7 Blackf. 468, 1845 Ind. LEXIS 79

Opinion

Sullivan, J.

— The defendant was indicted for living in open and notorious fornication with one Sarah Lang, he being an unmarried man. Whether S. L. was married or unmarried, does not appear by any distinct averment in the indictment. The Court, we are informed, quashed the indictment because it did not aver tfcat she was an unmarried woman.

On this question we admit there is some room for doubt, but our conclusion is, that the Court should not have quashed the indictment. It is not necessary that an indictment should negative every conceivable fact that may change the character of an offence. If, in the present case, the guilty accomplice of the defendant were a married woman, it would be a matter of which the defendant could avail himself on, the trial, and, by proving her married, be acquitted of the charge of fornication. We think the objection rests entirely in proof, and that the defendant should have been required to plead to the indictment.

Per Curiam.

— The judgment is reversed with costs. Cause remanded, &c.