The State v. Chandler

Decision Date21 January 1896
Citation33 S.W. 797,132 Mo. 155
PartiesThe State v. Chandler, Appellant
CourtMissouri Supreme Court

Appeal from St. Louis Court of Criminal Correction. Hon. David Murphy, Judge.

Reversed.

The evidence sufficiently proves the offense. It is not necessary to prove that the acts were open and notorious, or that they held themselves out as man and wife, or any ostensible living together as such. State v. West, 84 Mo. 440, loc. cit. 441, 442; State v. Berry, 24 Mo.App. 466, loc. cit. 467-469; State v. Clawson, 32 Mo.App. 93, loc. cit. pp. 95, 96; State v. Coffee, 39 Mo.App. 56; State v. Osborne, 39 Mo.App. 372, loc. cit. 375; Collins v. State, 14 Ala. 608, loc. cit. 609; Hall v. State, 53 Ala. 463, loc. cit. 465; Bodiford v. State, 86 Ala. 67, loc. cit. 68; State v. Jolley, 3 Dev. & Batt. 110, loc. cit. 115; Swancoat v. State, 4 Tex.App. 105, loc. cit. 117; Parks v. State, 4 Tex.App. 134, loc. cit. 138, 139; Commonwealth v. Mosier, 135 Pa. St. 221; Commonwealth v. Clifford, 145 Mass. 97; Pruner v. Commonwealth, 82 Va. 115, loc. cit. 118; People v. Girdler, 65 Mich. 69. It is not necessary to constitute the offense under the second clause of section 3798, Revised Statutes, 1889, under which this information was drawn, that the parties should live together "ostensibly" as man and wife, or that their acts of illicit intercourse should have been open and notorious. Under our procedure, the question as to the constitutionality of an act of the general assembly can be raised by incorporating same in the motion for a new trial or in arrest, and preserving the same in the record. Bennett v. Railroad, 105 Mo. 642. The question of the place of imprisonment has been passed on by this court adversely to defendant's contention. In re Jilz, 3 Mo. 243, pp. 245, 246, 247; Ex parte Thomas, 10 Mo.App. 24, pp. 26-29. A law making it a misdemeanor to do an act in a part of the counties of the state only, is not a violation of this section as depriving one of liberty without due process of law, nor is it a violation of the fourteenth amendment to the constitution of the United States. See State v. Moore, 104 N.C. 714; Davis v. State, 68 Ala. 58. Besides, the law sending misdemeanor convicts to the workhouse is a general law applicable to all counties of the state, and it does not appear from the record in this case that every sentence of imprisonment pronounced in a misdemeanor case in the state is not a sentence to imprisonment in a workhouse. Section 32 of the act of 1869 (Appendix Rev. Stat. 1889, p. 2156) authorizes the court of criminal correction to sentence to the work-house in misdemeanor cases. But section 4266, Revised Statutes, 1889, also authorizes the court of criminal correction, and every other court in the state, to sentence to the workhouse in misdemeanor cases. This takes away the inequality of which defendant complains; for all within the state are subject to a workhouse sentence.

OPINION

Sherwood, J.

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 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 when he was at home at night on the tenth or eleventh 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 twelfth 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 thirteenth until the twenty-third 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 twenty-third 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.

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, one or both of whom are married, but not to each other; second, 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; third, every person, married or unmarried, guilty of open, gross lewdness; or, fourth, lascivious behavior; or, fifth, 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." 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...

To continue reading

Request your trial
2 cases
  • Hayes v. Manning
    • United States
    • Missouri Supreme Court
    • December 31, 1914
    ... ... The Cumberland ... Church, in adopting that constitution, took it with the ... construction previously placed upon it. State v ... Chandler, 132 Mo. 155; Skouten v. Wood, 57 Mo ... 380; Collins v. Wilhoit, 35 Mo.App. 585; Brown ... v. Walker, 161 U.S. 591. (4) ... ...
  • Higginbotham v. McGready
    • United States
    • Missouri Supreme Court
    • June 20, 1904
    ... ... the same character of property. The section is, therefore, ... unconstitutional and void. State ex rel. v ... Ashbrook, 154 Mo. 375; State ex rel. v ... Washburn, 167 Mo. 680; State v. Thomas, 138 Mo ... 95. (3) The failure of ... ...

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT