Jones v. State , 133 Miss. 801 ( 1923 )

Sykes, P. J.,

delivered the opinion of the court.

In the circuit court the appellant was tried upon what purports to be án affidavit, which reads as follows:

“State of Mississippi, County of Forrest.

“Before me, the undersigned J. P., in and for district 1 of said county and state; J. M. Hooks makes oath that on or about March 3, 1923, Lewis Jones, an unmarried male person, did unlawfully and habitually prior thereto cohabit with Mrs. J. M. Hooks, a female person.

“ [Signed] J. M. Hooks.

“Sworn to and subscribed this March 3, 1923.”

This alleged affidavit was attempted to be made under section 1029, Code of 1906 (Hemingway’s Code, section 754).

As a matter of fact this is not an affidavit, because it does not show that it was sworn to and subscribed before an officer. Evidently tbe acknowledgment of this affidavit was meant to be taken by a justice of tbe peace., Tbis, however,' does not show on tbe paper, and neither does tbe testimony show that as a matter of fact Hooks swore to and subscribed that it was done. It is no more than a vagrant piece of paper as it now appears in tbe record. Even were it properly sworn to as an affidavit, it would be defective because no jurisdiction whatever is shown thereby. It is not a case of an attempt to show venue or of an improper or imperfect venue which is cured by section 1184, Hemingway’s Code (Code, of 1906, section 1428), but is a total failure to show any venue.

This alleged affidavit states that Lewis Jones “did unlawfully and habitually prior thereto cohabit with Mrs. J. M. Hooks, a female person.” It does not allege that this unlawful cohabitation was either in adultery or fornication. Neither does it aver that the parties were guilty of habitual sexual intercourse.

In the case of Newman v. State, 69 Miss. 393, 10 So. 580, it is held that habitual sexual intercourse is the gist of the offense under this statute. The appellant was not tried on an affidavit charging any offense. We are not called upon to say whether the defects in this paper can be amended.

The judgment is reversed, and the cause remanded.

Reversed and remanded.