State v. Miller , 60 Vt. 90 ( 1887 )

The opinion of the court was delivered by

Veazey, J.

The first exception is to the judgment of the County Court overruling the demurrer and adjudging the indictment sufficient.

It is claimed that the indictment was sufficient to meet the case provided for in section 4241 R. L., viz.: “A man with another man’s wife, or a woman with another woman’s husband, found in bed together under circumstances affording presumption of an illicit intention, shall each be imprisoned,” &c.

Each count charges in these woi’ds : “ Affording presumption of an illicit and felonious intention,” being in the words of the statute except the words “and felonious” are added. There is no allegation as to what the illicit intention was.

The rule, as to when it is sufficient to charge an offense in the words of the statute, was stated in State v. Higgins, 53 Vt. 191, being quoted from Mr. Pomeroy, and was thus: “ Whether an indictment in the words of a statute is sufficient or not, depends on the manner of stating the offense in the statute; if every fact necessary to constitute the offense is charged, or necessarily implied by .following the language of the statute, the indictment in the words of the statute is undoubtedly sufficient; otherwise not.”

That rule in substance has always been the test applied to indictments in this State. Under it this indictment is insufficient. The word “illicit,” as its derivation indicates, means that'which is unlawful or forbidden by the law. Bouv. Law Diet.; Webster’s Diet. It is not claimed that every illicit intention would warrant a conviction under this statute. It must be a particular unlawful intention. Therefore as the indictment stands all the allegations might be true and the respondent be not guilty. The illicit intention might hav¿ been to steal, burn or murder, as well as to have unlawful sexual connection. In United States v. Pond, 2 Curt. C. C. 265, Curtis, J., observed : “ This indictment follows the words of the statute. It is sufficient, therefore, unless the words of statute embrace cases which it was not the intention of the legislature to include within the law. If they do, the indictment should show this is not one of the cases thus excluded.” Mr. Chief Justice Marshall, in the case of the Mary Ann, 8 Wheat. 380, speaking of an information, said: “If the words which describe the subject of the law are general, embracing a whole class of individuals, but must necessarily be so construed as to embrace only a subdivision of that class, we think the charge in the libel ought to conform to the true sense and meaning of those words as used by the legislature.”

As the indictment must fall there is no occasion to pass upon the exceptions taken in the trial.

Exceptions sustained. Indictment adjudged insufficient and quashed. Respondent discharged.