39 Mo. App. 56 | Mo. Ct. App. | 1890
delivered the opinion of the court. This is a prosecution upon an indictment under section 1541 of the Revised Statutes of 1879, relating to
No briefs have been filed by either the state or the defendant, but.an examination of the record discloses that the defendant, in his motion for new trial, complains of the refusal of his instructions, and of instructions given on behalf of the state, and claims that the verdict is against the evidence.
There was evidence of a lascivious cohabitation, but no evidence that it was open and notorious. There was also evidence that the defendant was married to another woman, but such evidence consisted of the statement of witnesses who spoke of such other woman as defendant’s wife, and not of the production of the marriage certificate, or the testimony of witnesses to the marriage, or the defendant’s admission. The instructions which the defendant asked, and which the court refused, asserted the proposition that, to warrant a conviction, the lascivious cohabitation must be either open and notorious, or the defendant’s marriage must be proved by the marriage certificate or witnesses who were present at the marriage, or by the defendant’s admissions. The instructions, which the court gave on behalf of the state, warranted a conviction, if the jury found that the defendant did lewdly and lasciviously cohabit with the McGee woman, regardless of the fact whether the defendant was married or not.
The section of the statute under which this indictment was prosecuted provides for three classes of offenses: First, open and notorious adultery. Second,