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121 Miss. 580

Kemp v. State

Mississippi Supreme Court

Decided March 15, 1920

Mississippi Supreme Court · decided 1920-03-15

Hon. H. H. Elmore, Judge. Mollie Wemp was convicted of unlawful cohabitation with a male and appeals. The facts are fully stated in the opinion of the court. Replying to the brief of the attorney-general, the decision of this case involves a construction of the Code of 1906, section 1508, being section 1266 of Hemingway’s Code. We wish to say at the outset that this statute is in derogation of the common law and should be strictly construed.

Key passage — most relied on by later courts

“as charged. When counsel for appellant moved the court for a peremptory instruction and discharge of the appellant for the reason that the state had failed to prove the adultery as alleged in the indictment, the court permitted the district attorney, on motion, to amend the indictment by striking out the words”

quoted by 1 later decision, including 365 So. 2d 644 - Van Norman v. State

“Thereupon the case went to the jury, resulting in a conviction, and this action of the court is assigned here as reversible error. The indictment was drawn under section 1029, Code of 1906 (section 754, Hemingway's Code), which provides that,”

quoted by 1 later decision, including 365 So. 2d 644 - Van Norman v. State

Good law ✅— No negative treatment on recordhow we know

Decided 1920-03-15

How this case has been cited

Cited by 15 later decisions — most recently June 1994

15 state decisions

4019201930194019501960197019801990decided

Later decisions citing this case, by decade. The current decade is in progress, and our corpus holds fewer opinions from the most recent years, so the latest bars are undercounted — not a real decline.

View the full empirical analysis of this case →

Holden, J.,

¶1delivered the opinion of the court.

¶2The appellant, Mollie Kemp, was jointly indicted and convicted with one Morrison on a charge of unlawful cohabitation, from which she appeals; the charging part of the indictment being as follows:

“That J. W. Morrison and Mollie Kemp, in said county, on the 1st day of May, 1916, and continually until the date of filing of this indictment, the said J. W. Morrison a man, and Mollie Kemp, a woman, they not being then and there lawfully married each to the other, did lewdly and unlawfully cohabit together in adultery. ’ ’

¶3On the trial of the case the state failed to prove that either party was married; that is, that the parties had cohabited “in adultery” as charged. When counsel for appellant moved the court for a peremptory instruction and discharge of the appellant for the reason that the state had failed to prove the adultery as alleged in the indictment the court permitted the district attorney, on motion, to amend the indictment by striking-out the words “in adultery.” Thereupon the case went to the jury, resulting in a conviction, and this action of the court is assigned here as reversible error.

¶4The- indictment was drawn under section 1029, Code of 1906 (section'754, Hemingway’s Code), which provides that, “if any man and woman shall unlawfully cohabit, whether in adultery or fornication, they shall *590be fined,” etc. The latter part of this section also provides, “but it may be proved by circumstances which show habitual sexual intercourse.”

¶5We think that the charge of cohabitation “in adultery” was a matter of substance in the indictment, and should have been proved by the state, since the grand jury had charged that the unlawful cohabitation was a cohabitation by the parties “in adultery.” Therefore the court erred in permitting the amendment of the indictment with reference to a substantial part of the crime as charged by the' grand jury. Whether or not it was necessary in the first instance to charge that the unlawful cohabitation was either in adultery or fornication, since it did not charge habitual sexual intercourse between the parties as the statute prescribes the state could do, we do not decide. But, having specifically charged the cohabitation “in adultery,” it should have been so proved by the state.

¶6The judgment of the lower court is reversed and the case remanded.

¶7Reversed and remanded.

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