mounted her, and rode away, but in a different direction from Stockport, and the next day offered the mare for sale, alleging that she belonged to him. Bayley, Judge, charged the jury, that if a person gets possession of a horse by hiring, meaning at the time not to use it for the purpose for which he states he hired it, but to endeavor to make it his own, he is guilty of stealing. "In these cases," he said, "the guilt or innocence of the party depends upon what passed in his mind at the time, and this is to be inferred from circumstances; if you find that, instead of going to the place where he said he was going, he went elsewhere, it raises a presumption that he meant to deprive the original possessor of his horse." But the rule is, I believe, universal, that to constitute larceny the intention to steal must have been formed at the time of the taking.

Witt v. The State (9 Mo. 663), is a case much stronger than the one at bar for the prosecutor. There the court had instructed the jury, that if they believed from the evidence that the horse belonged to Smith, and that the prisoner took and carried away the horse, without the knowledge and consent of Smith, with the intention of selling him or of converting him to his own use, they ought to find him guilty. And although the jury might believe from the evidence that Smith, in the contract spoken of, had agreed that the prisoner might ride the horse, yet, if they believed the prisoner took the horse with the intention of selling him, or of converting him to his own use, they ought to find him guilty. The instruction was held to be erroneous, and it was declared that the facts assumed constituted merely a trespass and not larceny. Scott, Judge, speaking for the whole court, said, that there could not be a larceny without a felonious intent; that the taking of the personal goods of another without this intent might be a trespass, but it could not amount to larceny.

The prisoner might have done every act supposed by the instruction without being guilty of a felony. So in the case of The State v. Conway (18 Mo. 321), it was held, that there could not be a larceny without a felonious intent at the time of taking; that the taking might be a trespass, but it could not amount to a larceny. The case, as made out by the state, shows conclusively that the property was delivered to the defendants under a contract of sale, and that they were in the possession of it for several months, holding and using it under the contract. As it is not anywhere pretended that they had any other than an honest intent at the time they contracted for the property and received possession of it, it is utterly impossible to impute to them the crime of larceny. The court erred, and its judgment should be reversed and the cause remanded. The other judges concur.

THE STATE OF MISSOURI, respondent, v. JNO. D. CROWNER & NETTIE GORDON, appellants.

(56 Mo. 147. Supreme Court, March, 1874.)

Open and Notorious Adultery. — What constitutes. — Wagn. Stat. p. 500, § 8. Persons in order to be guilty of living together in open and notorious adultery, as meant by the statute (Wagn. Stat. p. 500, § 8), must reside together publicly, in the face of society, as if the conjugal relation subsisted between them, and their illicit intercourse must be habitual, and not occasional.

APPEAL from St. Louis Court of Criminal Correction.

VORIES, Judge, delivered the opinion of the court.

The defendants in this case were prosecuted for living in a state of open and notorious adultery. The information upon which they were prosecuted charged: "That John D. Crowner and Nettie Gordon, as affiant believed, in St. Louis County, on the 1st day of May, 1873, and on divers other days and times between that day and the filing of the complaint, unlawfully did live together in a state of open and notorious adultery, the said John D. Crowner being then and there, on the day aforesaid, a married man, and having then and there a lawful wife alive and in being other than the said Nettie Gordon, and the said John D. Crowner and the said Nettie. Gordon not being then and there and on said other days lawfully married to each other, contrary to the form of the statute," &c.

The defendants pleaded not guilty. A jury was waived and the cause submitted to the court for trial. It appears from the evidence in the case that the defendant, Jno. D. Crowner, at and before the time that the offence stated in the information is charged to have been committed, was a married man, and was residing with his lawful wife, and keeping a hotel in the town of Franklin, in this state; that about the last of July or the first of August in the year 1873, the defendants both together appeared at the house of Mrs. Fanny Fletcher, who then resided and kept a private boarding-house at No. 1609, Second Carondelet Avenue, in the city of St. Louis; they represented that they had visited the house for the purpose of looking at Mrs. Fletcher's rooms, with a view to rent or hire the use of one of them for occupation; that they found a room that suited them and rented it for one month, paying the rent or price in advance; that on the next day, which was Tuesday, they took possession of the room; that they did not both occupy the room that night, but that defendant Crowner left and went away in the evening, and did not return until the following Thursday evening, when he remained all night with the defendant Nettie, in the room, and the witness was of the impression that both defendants stayed in the room three nights of that week, but was not certain as to any night but one. This witness further testified, that there was only one bed in the room; that she never saw or suspected anything improper between the defendants, until Mrs. Crowner came to the house on the last afternoon referred to, and broke the door open and found the defendants in the room together, which was the only time that Crowner was known to have been in the room with Nettie

in the daytime. It was further shown by the evidence, that on the first Sunday in August, 1873, defendant Crowner and his wife came to the city of St. Louis from the town of Franklin and put up at the house of a friend; that Mrs. Crowner remained at the house of her friend all night, but that Crowner was absent during the day of their arrival, and did not return that night or the next day; that in the afternoon of the next day, which was Monday evening, Mrs. Crowner and her lady friend, with whom she was stopping, visited the house of Mrs. Fletcher at 1609, Second Carondelet Avenue, where Mrs. Crowner inquired for her husband. She was directed to the room which had been rented by the defendants, where she knocked at the door for admission. Admission being refused, she forced open the door and found the defendants in the room together, Crowner undressed and Nettie Gordon dressed as usual, only one bed in the room, which, from the appearance, had not been made up since being used; that some disturbance was caused by this surprise, and Nettie Gordon took her furniture and left the room, to which she never returned. It further appeared, that defendant Crowner and his wife then returned to their home in Franklin together, where they resided together for several weeks, when Mrs. Crowner left to visit her friends in some of the Eastern States. The evidence also showed that Nettie Gordon had no knowledge that Crowner was a married man until his wife came to the room at Mrs. Fletcher's at the time before referred to.

This was substantially the evidence in the case. At the close of the evidence the defendants moved the court to make the following declarations of the law as applicable to the case:

First. "That if the court, sitting as a jury, shall find from the evidence that the defendants were not living together in a state of open and notorious adultery, but were simply at the time charged in the information stopping together in the same room occasionally, and were only guilty of occasional acts of illicit intercourse, then the court should find the defendants not guilty."

Second. "If the court, sitting as a jury, find and believe from the evidence that the defendant Nettie Gordon did not know that the defendant John D. Crowner was a married man, at the time and place alleged in said information that the defendants lived together in open adultery, then the court should acquit defendant Nettie Gordon."

These instructions or declarations of law were severally refused by the court, and the defendants excepted. The court then found both of the defendants guilty, and assessed their punishment at a fine of $300 each.

The defendants filed a motion for a new trial, stating as grounds therefor the refusal of the court to declare the law as asked for by the defendants, and also that the finding of the court was against the evidence and against the law of the case. This motion being overruled by the court, the defendants both appealed to this

court.

66

The statute under which this prosecution was had is as follows: Every person who shall live in a stato 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, and punished by imprisonment in the county jail, not exceeding six months, or by fine not exceeding three hundred dollars, or by both such fine and imprisonment. Wagn. Stat. 500, 8. This statute contemplates three different classes of offences. The first, and the one for which the defendants in this case were prosecuted, applies only to persons who live in a state of open and notorious adultery, and the offence under that clause of the statute can only be committed by a married person; the second class of offences can only be committed by a man and a woman, one or both of whom are married, and not to each other, and who shall lewdly and lasciviously abide and cohabit with each other, &c. The third class of offences provided for may be committed by any person, either married or unmarried.

The defendants in this case are charged with living in a state of opon and notorious adultery. The offence consists of an open and notorious living or cohabiting together: occasional illicit intercourse will not constitute the offence. The statute was intended to provide against persons who, in defiance of morality and of the good or well being of society, should openly live together; they must reside publicly in the face of society as if the conjugal relation existed between them; their illicit intercourse must be habitual. Wright v. The State, 5 Blackf. 358; Searls v. The People, 13 Ill. 597. State v. Gartrell, 14 Ind. 280; State v. Marvin, 12 Iowa, 499; Hinson v. The State, 7 Mo. 244; Dameron v. The State, 8 Mo. 494.

I would not be understood to say that the cohabiting and abiding together must be for any great length of time; perhaps a short time would do, but the parties must live together in a notorious and open manner to the evil example of society. Simply having occasional illicit intercourse, without a public or notorious living together, as the evidence in this case tends to prove, is certainly not sufficient. It follows that the court erred in refusing the first declaration of law asked for by the defendants, and in overruling the defendants' motion for a new trial. It is not necessary to notice any other points raised in the argument of the case in this court.

The judgment must be reversed. Judge Sherwood rot sitting, the other judges concur.

SARAH A. BECKHAM, respondent, v. ANTHONY NACKE, appellant. (56 Mo. 546. Supreme Court, March, 1874.)

Marriage of Minors without Consent of Parents. - Liability of Magistrate. An honest mistake by a magistrate performing a marriage ceremony as to the age of a person whom he married, is no protection against the penalty affixed by law to the performance of such ceremony when the persons married are minors, without the consent of their parents or guardians.

On questions of age and pedigree, family records are admissible in evidence. General repute with the family is also sometimes admissible in such cases.

APPEAL from St. Louis Circuit Court.
Melville Smith, for appellant.

C. M. Whitney, for respondent.

ADAMS, Judge, delivered the opinion of the court.

This was a qui tam action brought by the plaintiff against the defendant, who was a justice of the peace, for the penalty imposed by statute for joining in marriage her minor son without her

consent.

The plaintiff was a widow and had the sole care and custody of her son, as surviving parent. The son was nineteen years of age, and had the appearance of being over twenty-one, and had induced the defendant to perform the ceremony, by falsely representing that he was of age.

First. The only material point presented by the record is, whether the defendant could justify himself by setting up as a defence his want of knowledge of the age of the minor, when he acted in good faith and used due diligence to procure the required information. This action is founded on the sixth section of the Marriage Act (2 Wagn. Stat. 930), which prescribes that "if any such person shall join in marriage any minor without a written certificate of consent under the hand of the parent, guardian, or other person under whose care and government the minor may be, or the presence and consent of the parent, &c., such person shall forfeit three hundred dollars, to be recovered with costs of suit by civil action in any court having cognizance, by the parent, guardian, or other person having charge of such minor; the one half of the forfeiture to the use of the county, and the other half to the use of the person who shall prosecute for the same."

The statute provides the means by which any person performing the ceremony may easily protect himself from this penalty. He must have the written consent of the parent, guardian, or other person having charge of the minor. It is not sufficient that he should act under the bona fide belief that such minor is of full age. His honest mistake in this regard will not protect him. The law explicitly declares what is required for his protection, and unless he adopts the means pointed out by the statute he must suffer the consequences.

We recognize the principle that penal statutes must be strictly construed. But this statute will not admit of any other construction than the one we have given, without violating the evident intention