State v. Coffey , 44 Mo. App. 455 ( 1891 )

Biggs, J.

The defendant Coffey is a married man, and his codefendant is an unmarried woman. They were jointly indicted, tried and convicted, under the second clause of section 3798 of the Revised Statutes of 1889, which reads: “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, * * * shall, upon conviction, be adjudged guilty of a misdemeanor.”

The defendants have appealed, and assign for error the refusal of the court to sustain a demurrer to the plaintiff’s evidence, and the admission of incompetent and prejudicial evidence offered by the state. The defendant’s first assignment is not well taken. There was substantial evidence, though circumstantial, that the defendants abided and dwelt together for the purpose of having sexual intercourse. State v. Osborne, 39 Mo. App. 372; State v. West, 84 Mo. 440. It is not necessary for us to go into the details.

The judgment of conviction will have' to be set aside, and the cause remanded, on account of the admission of incompetent evidence. The defendant Coffey testified in his own behalf. For the purpose of impeaching his testimony, the court permitted the state to introduce some damaging testimony concerning his general reputation for chastity. This was error. State v. Clawson, 30 Mo. App. 139.

The court also admitted evidence against the objection of the defendants, to the effect that they were seen walking together in the orchard. There was nothing in the testimony of the witness concerning the conduct of the parties, from which it could be reasonably inferred that they were engaged in any illicit intercourse. This evidence ought also to have been excluded. State v. Clawson, supra.

The court permitted the state to show that the defendant Coffey furnished Mrs. Rowe with groceries. This testimony was objected to on the trial, but the objection is not urged in this court. In view of a probable retrial of the case we have deemed it proper to state that we are inclined to the opinion that this evidence was inadmissible.

For the foregoing reasons, the judgment of the circuit court will be reversed and the cause remanded.

All the judges concur.