Alonzo v. State.

relation to such fact, which fact, had it been true, would have rendered the alleged criminal act legal and innocent, the party so acting under such mistake of fact would be innocent of crime. Penal Code, art. 15; Watson v. State, 13 Tex. Ct. App. 76. But suppose the other party was not mistaken as to such fact, but on the contrary, well knew the true fact which rendered the connection illicit, would this party be regarded as guilty of no offense because the mistaken party was innocent ?

If the North Carolina rule is correct, it must apply also to fornication, bigamy and incest. Now suppose a father and his daughter are indicted for incestuous intercourse with each other. Upon trial of the daughter it is conclusively proved that at the time of committing the physical act she was an idiot, or that she was wholly ignorant of the relationship existing between herself and her father, without any fault of hers; of course in either of these cases she must be acquitted. Would it not be monstrous to hold that because of her innocence, her acquittal, the beastly father must go unpunished for his unnatural crime? Such cannot be the law, and such, we believe, is not the law as declared by the weight of authority.

In Missouri, it has been held, in a case of incest where one party had knowledge of the relationship and the other was ignorant of it, that the former may be convicted and the latter acquitted. State v. Ellis, 74 Mo. 385; s. c., 41 Am. Rep. 321.

In Tennessee, a question similar to the one at bar was decided adversely to the doctrine enunciated in the North Carolina cases referred to. As the opinion is very short and pointed, we will quote it at length. It is as follows: "Defendant and a woman named Green were jointly indicted for open and notorious lewdness. The parties severed for trial, and the woman was acquitted. A plea was filed in bar to the further prosecution on the part of defendant on the ground that the acquittal of the woman operated as equivalent to an acquittal of the man, as the offense could only be committed by two persons. The plea was demurred to, but the demurrer was overruled. The attorney-general declining to take issue on the plea, the defendant was discharged and the State appealed. We think the court erred in refusing to sustain the demurrer. The State might fail to be able to make proof of the offense in the trial of one party from many causes, yet might be. able to make proof on the trial of the other. We so held at Nash+ VOL. XLIX-27

Alonzo v. State.

ville some time since, and approve the holding. The acquittal of one could not show the other not guilty." State v. Caldwell, 8 Baxt. 576.

Mr. Wharton says: "The weight of authority is that the two participants in adultery may be joined in the indictment, or may be tried singly. And one may be convicted and punished without any conviction of the other." 2 Whart. Cr. Law, § 1730. Again this same author says: "In other joint offenses it is necessary to prove the concurrence of the participants. This however is not necessarily the case in adultery, of which a person may be guilty who commits the offense by force." 2 Whart. Cr. Law, § 1724. See also State v. Saunders, 30 Iowa, 582.

Mr. Bishop says: "As every offense to be punishable must be voluntary, so in particular must be adultery. But alike in adultery, and it is believed in fornication and incest, where the crime consists of one's unlawful carnal knowledge of another, it is immaterial whether the others participated under circumstances to incur guilt or not, just as sodomy may be committed with a responsible human being, or an irresponsible one, or a beast. Therefore the same act of penetrating a woman, who for example is too drunk to give consent, may be prosecuted either as a rape, or as adultery at the election of the prosecuting power. There are cases which deny this, and hold that adultery, fornification and incest can be committed only with consenting persons, and what is rape cannot be one of the others. But they are believed to proceed partly, and perhaps entirely, on special terms of statutes. Certainly in principle they can have no other just foundation." Bish. Stat. Crimes, § 660

But independently of other authorities, we think the provisions of our Code of Criminal Procedure are decisive of this question. Article 525 provides that the only special pleas allowed a defendant are, first, a plea of former conviction, and second, "that he has been before acquitted by a jury, of the accusation against him, in a court of competent jurisdiction, whether the acquittal was regular or irregular.' Now how can it be said that this defendant has been acquitted upon an accusation upon which he has never been tried? We cannot perceive the applicability of a plea of former acquittal in such a case.

Again article 717 provides: "Where several defendants are tried together, the jury may convict such of the defendants as they deem guilty, and acquit others." No exception is made to the

the

Alonzo v. State.

operation of this provision in the case of a trial for adultery, or in any other case. Suppose the defendants in this case, being jointly indicted, had been jointly tried, and one of them had been acquitted, and the other convicted, would not such a verdict have been expressly authorized by the last quoted article of the Code? We think so, and being so warranted, the court could not have declined to pronounce the judgment of conviction.

We therefore hold that the court did not err in sustaining the motion of the county attorney to strike out the special plea of former acquittal filed by the defendant. The acquittal of his codefendant could in no manner affect the question of his guilt or innocence, and the case must be considered without reference to such former acquittal of his co-defendant.

[Omitting other matters.]

Because of the errors we have designated, the judgment is reversed and the cause is remanded.

Reversed and remanded.

CASES

IN THE

SUPREME COURT

OF

MISSOURI,

LIEBKE V. Knapp.

(79 Mo. 22.)

Corporation-contract-ultra vires.

A contract by a corporation organized to build a public bridge, with the proprietor of a newspaper, to give him stock of the company in consideration of his publishing articles favoring the enterprise and showing the value of it as an investment, is valid.

Geo. M. Stewart and J. H. Wieting, for appellants.

Glover & Shepley, for respondents.

SHERWOOD, J. The plaintiffs, under the provisions of the statute, moved the Circuit Court that execution issue against the defendants, claiming that the latter were the holders of certain shares of unpaid stock in the Illinois and St. Louis Bridge Company.

The contract made with the bridge company, as evidenced by a communication addressed by John Knapp to C. K. Dickson, president of that company, and his reply thereto, is set forth in the following letters, both bearing date September 30, 1867:

Liebke v. Knapp.

John Knapp to C. K. Dickson, president of the bridge company: "I am desirous of becoming an associate in the bridge company, and hereby authorize you to propose my name for that purpose, and if elected will take $20,000 of stock of said company.

On the same day C. K. Dickson, as president, addressed the following letter to John Knapp:

"This is to certify that your proposition to subscribe for $20,000 of the stock of the bridge company is made with the express understanding that the first $5,000 of said subscription is to be deemed as paid in full by you. When a call is made on the stockholders beyond $5,000 or twenty-five per cent of their subscription, you will be expected to pay such calls, or to notify me of your decision to limit your subscription to $5,000, instead of $20,000, when your interest in the company will be limited to that sum, which will be deemed full paid stock."

The subscription thus made was subsequently enlarged to $25,000 and transferred to the joint names of the defendants. All of the amount thus subscribed was paid on calls from time to time, except the $5,000, for which a credit was duly given and entered on the books of the company, after the services for which the credit was allowed had been rendered.

The Circuit Court on hearing the evidence adduced, found for the defendants, thereby determining as a matter of fact that payment of the $5,000 had been made; and as no declarations of law were asked on either side, no law point has been saved, so that the only question the record presents is whether there is any substantial testimony in the evidence to establish the payment claimed by the defendants to have been made.

The authorities are not in entire accord as to whether the payment of a stock subscription can be made in any thing else than money, some holding one way and some the other. But the class of authorities which declare that a subscription may be paid otherwise than in money, we regard as asserting a more reasonable doctrine, a doctrine better adapted to the practical affairs of business life. Regarding the matter then in this light, we shall rule that payment of stock subscriptions need not be in cash, but may be in whatever, considering the situation of the corporation, represents to that corporation a fair, just, lawful and needed equivalent for the money subscribed. Any other doctrine than this would, as it seems to us, place a corporation at a disadvantage, under a dis