Hopper v. State

The only question in this case is, whether it was competent for the jury to find the defendant guilty of fornication under the charge in the indictment. It is not denied that the offense charged does not include, and necessarily include, either *391adultery or fornication, or both; but it is said that it does not appear from the indictment which. The indictment does not allege whether the defendant was, at the time the offense was committed, married or single, and that the offense would be adultery if he was married, and fornication if he was single. It is, therefore, insisted that there was no charge in the indictment on which to found the verdict. Our Code does not define these offenses; it merely provides that if one be guilty of fornication or adultery, or both, he or she shall be punished, etc. Nor is there any common law definition of these words, the offense not-being punishable by the common law. There is, therefore, no express language of the statute which it is necessary to use in order to charge, in legal terms, the offense in the bill of indictment. It seems to us that the charge here is sufficient. It does not appear from the indictment that either party was married. Indeed, the.implication is that neither was, since the charge is seduction under promise of marriage. Now marriage is a new condition. It is taken on. It is notfhe normal condition of either a man or a woman. We are not prepared to say that an indictment for fornication, charging that A had been guilty of carnal connection with B, A being a male and B a female, would not be good. Would not the law imply that neither was married ; at least that the pleader so intended ? Had this verdict been for adultery the point of the plaintiff in error would be strong; but as it is for fornication it meets the statements in the indictment.

Judgment affirmed.