132 Mo. 155 | Mo. | 1896
I. This cause appealed to the St. Louis court of appeals has been transferred to this court, because of a motion made in the lower court, which raises the question of the constitutionality of the law which allows a party to be punished by imprisonment in the workhouse of the city, on conviction of a misdemeanor.
The prosecution, which resulted in a conviction and sentence of defendant to the workhouse, and the payment of a fine of $500, was founded upon section 3798, Revised Statutes, 1889.
“ Every person who shall live in a state of open and notorious adultery, and every man and woman, one or both of whom are married, and not to each other, who shall lewdly and lasciviously abide and
The information in this case in its material portion is as follows:
“That Henry W. Chandler, in the city of St. Louis, on the thirteenth day of March, 1895, did then and there and from that day continuously until the twenty-third day of March, 1895, unlawfully, lewdly, and lasciviously abide and cohabit with one Kitty Coyle, and the said Henry W. Chandler and the said Kitty Coyle then and there continuously during the aforesaid time did unlawfully, lewdly, and lasciviously abide and cohabit with each other and then and there have sexual intercourse together, he, the said Henry W. Chandler, being then and there a married man and having a wife living, and she, the said Kitty Coyle, then and there being a married woman and having a husband living, and they, the said Henry W. Chandler and Kitty Coyle, not being then and there married to each other, contrary to the form of the statutes in such cases made and provided, and against the peace and dignity of the state.”
The testimony discloses in substance this state of facts: Defendant was married and lived with his wife and children at Thirty-first and Olive streets, in ¡St. Louis. “Kitty Coyle,” whose name appears conjoined with that of defendant in the information, lived with her husband, James F. Coyle, at his residence, 4213 Washington avenue, in the same city. Coyle and his wife had been married since April 3,18-73. The various parties mentioned had, it seems, been acquainted for someten years.
Owing to certain sounds or whistles heard by Coyle
The section of the statute already quoted, • embraces five offenses: First, living in a state of open and notorious adultery by two persons of opposite sexes,
The offense here charged evidently falls within the second of those subdivisions, ■ and the question arises whether the evidence sustains the charge. It is not believed that it does. There is nothing to show that defendant or his paramour lived together as husband and wife. Webster says “ cohabit” means “to dwell or live together as husband and wife.” Webst. Int. Dict. Bouvier defines the term: “To live together in the same house claiming to be married; to live together in the same house.”
In an early case in Massachusetts, probably the earliest one of the sort occurring in this country, a prosecution was had under the statute of 1784, which provided, “that if any man and woman, either or both of them being then married, shall lewdly, and lasciviously associate and cohabit together, they shall be punished by,” etc. Whereupon the court remarked: “By cohabiting must be understood a dwelling or living together, not a transient and single unlawful interview. The design of the statute, in this particular provision, was to prevent evil and indecent examples, tending to corrupt the public morals.” Com. v. Calef, 10 Mass. *153.
It will be presumed that our legislators were not unfamiliar with the meaning attached to the word in question, by earlier adjudications on that word. And when a statute or controlling word in a statute has
Virginia has a statute very much resembling that of Massachusetts previously quoted, which provides: ‘ ‘If any persons, not married to each other, lewdly and lasciviously associate and cohabit together,” etc., etc. And in construing this statute Fauntleroy, J., observes: “The terms ‘not married to each other’ and ‘lewdly and lasciviously associate and cohabit together’ clearly explain the meaning of the statute as intended to apply to cases where a man and a woman, ‘not married to each other,’ live together as man and wife live together, without the sanction of the nuptial tie. There must be ‘cohabitation,’ and there must be lewd and lascivious cohabitation. There must be a living- together. * * * Obviously the legal sense of the term in the statute is to live together, in the same house as married persons live together, or in the manner of husband and wife. * * * The conjunction 'and,' in the phrase of the section, is essentially and indispensably copulative; there must be both— lewd and lascivious intercourse, and a living together of the parties as husband and wife live together — to constitute the offense of lewd and lascivious association and cohabitation.”' Jones v. Com., 80 Va. 20.
Touching this topic, Ag-new, C. J., remarks: “Loose notions seem to prevail as to what cohabitation is. It is not a sojourn, nor a habit of visiting, nor even a remaining with for time. None or these fall within the true idea of cohabitation. * * * The legal idea of cohabitation is that which carries with it a natural belief that it results from marriage only. To cohabit,
In Florida, under a statute substantially identical with that of Virginia, a similar ruling has been made to that already quoted, to wit, that the evidence must show “a dwelling or living together by the parties as if the conjugal relation existed.” Luster v. State, 23 Fla. 339.
In Mississippi, the statute read: “If any man and woman shall unlawfully cohabit, whether in adultery or fornication, they shall be fined,” etc. And upon this statute, a ruling like the ones previously mentioned was made. Carrotti v. State, 42 Miss. 334.
This case was approvingly followed by that of Kinard v. State, 57 Miss. 132, where in commenting on that case, it is said: “The decision is that no continuance of illicit intercourse makes out the crime so long as it is secret or attempted to be made so, but that, whenever secrecy is abandoned and the concubinage is open, the offense is complete. In the interests of morality, it is perhaps to be regretted that a more rigorous doctrine can not be deduced from our present statute and the decisions upon similar statutes elsewhere.”
Acting upon this hint, the legislature of Mississippi in 1880 added to the statute these words: “And it shall not be necessary to constitute the offense, that the parties shall dwell together publicly as husband and wife, but it may be proved by circumstances which show habitual sexual intercourse.” Granberry v. State, 61 Miss. 440. Thus sanctioning by legislative enactment a prior judicial construction.
See, also, Bishop Stat. Crim. [2 Ed.], sec. 712; Ibid., Mar. & Div., sec. 777; Sullivan v. State, 32 Ark. 187; State v. Marvin, 12 Iowa, 499; Richardson v. State, 37 Tex. 346; State v. Sekrit, 130 Mo. 401.
It is not the object of the statute to establish a censorship over the morals of the people, nor to forbid the violation of the seventh commandment. Its prohibitions do not extend to stolen waters nor to bread eaten in secret. Its evident object was not to forbid and punish furtive illicit interviews between the sexes, however frequent and habitual their occurrence; but only to make such acts punishable as it plainly designates; acts which necessarily tend by their openness and notoriety, or by their publicity to debase and lower the standard of public morals. Here the interviews between the guilty parties were entirely clandestine; even the servants of the household where the liaison had its headquarters, were not aware of the occurrences which form the basis of the present prosecution. In such circumstances to hold that defendant and his paramour did “abide and cohabit with each other,” would be to pervert the plain words of the statute, and to convict without evidence.
II. It has been ruled by this court that a statute was constitutional which authorized the punishment of misdemeanors by confinement in the workhouse. Therefore, the lower court was right in holding as it did with regard to the validity of the statute. It was competent, however, to raise the point of the constitutionality of the statute by motion in the lower court. Bennett v. Railroad, 105 Mo. 642.
III. But notwithstanding the point was correctly ruled by the lower court, relative to the constitutionality of the statute in regard to sentencing defendant to the workhouse, still he had the right to raise the question, and this question being raised would give this
Inasmuch, for reasons heretofore given, the state has no standing in this- court, on the merits of the cause, as there is a failure of proof, the judgment should he reversed and defendant discharged. It is so ordered.