also been held that when a female witness has testified to certain indecent conduct toward herself in a matter in which she is not directly interested, evidence relating to her general character for truth, veracity, and chastity is admissible to impeach her: Indianapolis etc. Ry. Co. v. Anthony, 43 Ind. 183. On a trial for rape, it has been held that after the defendant's wife has testified as a witness in his behalf, she may, for the purpose of impeaching her credibility and character, be asked whether she had not lived with the defendant as his mistress before her marriage to him: Exon v. State, 33 Tex. Cr. Rep. 461.

In Missouri, the rule has long been maintained that inquiries into the character of a female witness for chastity are permissible for the purpose of impeaching and discrediting her testimony: State v. Shields, 13 Mo. 236; 53 Am. Dec. 147; State v. Grant, 79 Mo. 133; 49 Am. Rep. 218; and in that state the rule has lately been extended to male, as well as female, witnesses: State v. Rider, 95 Mo. 486; State v. Shroyer, 104 Mo. 441; 24 Am. St. Rep. 344; State v. Raven, 115 Mo. 419. It seems probable that the time must soon come when the rule must be abandoned, even in that state, as a whole, in view of the overwhelming array of authority supporting the contrary doctrine.

Prosecution for Rape. - Although a somewhat vexed question, it is generally held that in prosecutions for rape, assault with intent to commit rape, and indecent assault, neither the credibility of the prosecutrix as a witness, nor her chastity can be impeached by evidence of particular acts of unchastity, though they may always be impeached in such cases by general evidence of her reputation for unchastity: Pleasant v. State, 15 Ark. 624; Watry v. Ferber, 18 Wis. 500; 86 Am. Dec. 789; Dimick v. Downs, 82 Ill. 570; State v. Daniel, 87 N. C. 507; State v. Jefferson, 6 Ired. 305; McDermott v. State, 13 Ohio St. 332; 82 Am. Dec. 444; McCombs v. State, 8 Ohio St. 643; Camp v. State, 3 Ga. 417; Commonwealth v. Kendall, 113 Mass. 211; 18 Am. Rep. 469; State v. Forshner, 43 N. H. 89; 80 Am. Dec. 132. In such cases the testimony as to the general character of the prosecutrix for chastity must be confined to the time at or before which the offense was coinmitted. Inquiry cannot be made as to knowledge since acquired: State v. Forshner, 43 N. H. 89; 80 Am. Dec. 132; Pratt v. State, 19 Ohio St. 277. Evidence of previous acts of unchastity with other men is not admissible: State v. Knapp, 45 N. H. 148; McCombs v. State, 8 Ohio St. 643. In these cases, evidence that the woman is a common prostitute has been held admissible to impeach her credibility as a witness: Camp v. State, 3 Ga. 417. In New York, the rule is maintained that the prosecutrix may be shown to be a common prostitute, for the purpose of impeaching her, and for this purpose evidence may also be given of previous connection or acts of lewdness with other men, indicating on her part a want of chastity: People v. Abbot, 19 Wend. 192; Ford v. Jones, 62 Barb. 484; Woods v. People, 55 N. Y. 515; 14 Am. Rep. 309. And the same rule obtains in California: People v. Benson, 6 Cal. 221; 65 Am. Dec. 506. The question of the impeachment of the prosecutrix in rape cases by proof of her unchastity and bad character is treated at length in the note to Smith v. State, 80 Am. Dec. 368.

STATE V. CHANDLER.

[132 MISSOURI, 155.]

ADULTERY-LASCIVIOUS COHABITATION-WHAT CONSTITUTES.-Under a statute making it a misdemeanor for a "man and woman, one or both of whom are married, and not to each other, to lewdly and lasciviously abide and cohabit with each other,” such persons can only be convicted upon proof that they have lived together in the same habitation in the manner of husband and wife. Evidence of clandestine sexual intercourse is insufficient to sustain a conviction.

STATUTES-CONSTRUCTION-ADOPTION FROM ANOTHER STATE.-If a statute or controlling word therein has received adjudication in the state where the statute originated, and that statute in substance, or its controlling word, has been adopted in another state, it is presumed that it was adopted with the meaning which had theretofore attached to it in the state of its origin.

CONSTITUTIONAL LAW.-A statute authorizing the punishment of misdemeanors by confinement in a workhouse is not for that reason unconstitutional.

CONSTITUTIONAL LAW.-The constitutionality of a statute may be questioned by motion made in the trial court.

CONSTITUTIONAL LAW-JURISDICTION.-If the constitutionality of a statute is questioned by motion in the trial court, and the cause is for that reason transferred to the supreme court, the latter court acquires jurisdiction to hear and determine the whole case upon the merits.

C. T. Noland, for the appellant.

R. F. Walker, attorney general, and F. Smith, for the state. 158 SHERWOOD, J. 1. 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 five hundred dollars, was founded upon section 3798 of the Revised Statutes of 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 159 cohabit with each other, and every person, married or unmarried, who shall be guilty of open, gross lewdness or lascivious behavior, or of any open and notorious act of public indecency, grossly scandalous, shall, on conviction, be adjudged guilty of a misdemeanor."

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, 1873. The various parties mentioned had, it seems, been acquainted for some ten years.

Owing to certain sounds or whistles heard by Coyle 160 when he was at home at night on the 10th or 11th of March, 1895, and to the catching sight of defendant immediately thereafter in front of his house, Coyle's suspicions were aroused, and, as business called him away to Denver on the 12th of March, he employed, before leaving, detectives to watch his residence, and defendant, during his absence. The evening after his departure, namely, March 13, 1895, a detective, who had hidden himself in Coyle's cellar where he could have a view of the front door, saw defendant, after nightfall, approach Coyle's house and enter without being admitted by another. During each succeeding night, from the 13th until the 23d of March, 1895, defendant was seen at different hours after night, from 7:30 to 11:30 o'clock, to enter Coyle's residence by unlocking the front door and depart therefrom at from 5 to 5:35 o'clock each morning. During this period, Mrs. Kitty Coyle and two servant girls were the only regular inmates of the Coyle residence. Upon Coyle's return to the city on the night of the 23d of March, 1895, instead of at once hastening home, he took into his counsel one Ford Smith, who it appears was his legal adviser, and in company with him and four others, two of whom were detectives (who had kept watch over the defendant and Mrs. Coyle's maneuvers during the husband's absence), he repaired to his home. Two of the party remained

on the sidewalk in front of the house, to keep a lookout, while two went in through the front door and the other two entered at the rear of the building. Proceeding stealthily to the bedchamber of Mrs. Coyle, they entered and found defendant in bed with her, each being arrayed in their nightgowns.

161

The section of the statute already quoted, embraces five offenses: 1. Living in a state of open and notorious adultery by two persons of opposite sexes, one or both of whom are married, but not to each other; 2. A man and woman, one or both of whom are married, but not to each other, who lewdly and lasciviously abide and cohabit with each other; 3. Every person, married or unmarried, guilty of open, gross lewdness; or 4. Lascivious behavior; or 5. Of any open, notorious act of public indecency, grossly scandalous.

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": Webster's International Dictionary. 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 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": Commonwealth 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 162 received adjudication in the state where the statute originated, and that statute in substance, or its controlling word, has been adopted in another state, it will be presumed that it was adopted with the meaning which had therefore attached to it in the state of its origin.

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. 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. Commonwealth, 80 Va. 20.

Touching this topic, Agnew, 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 of 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 163 is to live or dwell together; to have the same habitation": Yardley's Estate, 75 Pa. St. 207.

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: Carotti v. State, 42 Miss. 334; 97 Am. Dec. 465.

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 cannot be deduced from our present statute and the decisions upon similar statutes elsewhere."