Tynes v. State

46 So. 535, 93 Miss. 119

• Court: Mississippi Supreme Court
• Decided: March 15, 1908
• Status: Published

Opinion

Calhoon, J.,

delivered the opinion of the court.

The material part of the indictment is in these words: “That Drank T. L. Tynes and Gertrude Buckles, late of the county aforesaid, on the 19th day of August, A. D. 1907, in the county aforesaid, did then and there wilfully and unlawfully cohabit together and have sexual intercourse with each other, they, the-said Tynes and Buckles, not then and there being married to-each other.” The demurrer to the indictment, assigning as cause that it did not charge the one to be a man and the other a woman was properly overruled. State v. Lashley, 84 N. C., 754. The parties could not unlawfully cohabit and have “habitual sexual intercourse,” being not married, without being man and woman. The objection, is too technical.- It could not have done any hurt to do as the court did — allow evidence that the-appellant was a married man.

The objections to the granting of the third instruction for-the state are equally without merit. It is immaterial that the charge did not say that the one was a man and the other a woman. It is not fatal, on this whole record, to omit the word “unlawfully.” The charge was given on the facts before the court, and if the jury believed from the proof that there was habitual sexual intercourse it was manifestly unlawful. The unlawfulness in this case could not be controverted if the jury believed that there was the habitual sexual - intercourse, which was the real point in the case.

'Affirmed.