taining some doubts as to the correctness of the reasoning in the case cited, we prefer to rest our decision on different grounds. The offense contemplated by the statute was, not a single act, but the living together in fornication; and the facts which enter into the composition of this offense are necessarily so complicated that it is impossible to state them so that the legal conclusion of guilt will result with certainty and precision, and for this reason it is unnecessary to allege them."1

§ 707. Other forms of the statute may require corresponding differences in the indictment. But the principles for constructing it are already sufficiently explained.

§ 708. Joint or several. Though the joining in one indictment of the two participants in this guilt seems to be the ap propriate course, it is not necessary. The proceeding against one alone is good. Or, if the two are joined and one only is taken, he may be tried; and, if there is a general verdict of guilty, this will not furnish ground for arresting judgment." § 709. Secondly. The evidence:

In general. The explanations of the evidence in the last two chapters are applicable equally under this head, and they cover the entire ground, except what will be obvious to every practitioner.

1 Lawson v. S., 20 Ala. 65, 74, [56 Am. D. 182.] See Crim. Pro., I, §§ 493498.

2 As, for example, see S. v. Fore, 1 Ire. 378; S. v. Jolly, 3 Dev. & Bat. 110, [32 Am. D. 656;] S. v. Gartrell, 14 Ind. 280.

Wasden u. S., 18 Ga. 264; [S. v.

500

Rinehart, 106 N. C. 787, 11 S. E. R. 512.]

4S. v. Lyerly, 7 Jones (N. C.), 158.

For proofs held not sufficient, see Cohen v. S., 11 Tex. Ap. 337; [Taylor v. S., 36 Ark. 84; Bush v. S., 37 Ark. 215; Mynatt v. S., 8 Lea (Tenn.), 47; Bodifield v. S., 86 Ala. 67, 5 S. R. 559.]

§ 710. Order of chapter. We shall consider, L. The law of the offense; II. The procedure.

I. THE LAW OF THE OFFENSE.

§ 711. At common law. Though a single act of mere private incontinence is not indictable at the common law,' one in a public place and witnessed by people is. And, as explained in other connections, the indecent living together of men and women contrary to the order of society, and other like indecencies in the face of the public, may be sufficiently offensive and injurious to the community to be punishable as criminal nuisances.1

§ 712. Under statutes.- In aid and extension of this common-law doctrine, we have statutes in various terms, containing such expressions as

"Lewdly and lasciviously associate." - Under the words "shall lewdly and lasciviously associate and cohabit together," the cohabitation meant was held to be, not simple incontinence in one instance, or in two instances, but a living together by the parties; the legislative purpose being, in the language of the court, "to prevent evil and indecent examples, tending to corrupt the public morals." There must be something more, therefore, than mere private incontinence, continued to how

1 Ante, §§ 654, 691.

2 Crim. Law, I, §§ 1125-1127; Reg. v. Elliot, Leigh & C. 103; [Vaughan v. S., 83 Ala. 55, 3 S. R. 530; Schoudel v. S., 57 N. J. L. 209, 30 Atl. R. 589. Crim. Law, I, §§ 500, 501, 1146.

Brooks v. S., 2 Yerg. 482; Britain v. S., 3 Humph. 203; Crouse v. S., 16 Ark. 566; Delany v. P., 10 Mich. 241. S. v. Marvin, 12 Iowa, 499.

6 Com. v. Calef, 10 Mass. 153; S. u. Moore, 1 Swan (Tenn.), 136.

ever great a degree. Nor will the mere living together of a man and woman as husband and wife under an invalid marriage, in the mistaken belief that it is valid, constitute this offense.2

§ 713. "Lascivious carriage”-may be committed by wanton and lascivious acts of one person toward and against the will of another of the opposite sex. The statute was "meant," said Baldwin, J., "to include and suppress all those wanton acts, between persons of different sexes, flowing from the exer cise of lustful passions, which are grossly indecent and unchaste, and which are not otherwise punished as crimes against chastity and public decency."

$714. "Open and gross lewdness and lascivious behavior." Within this expression is a man who indecently exposes his person to a woman, and solicits her to sexual intercourse, and persists in the solicitation, against her opposition and remonstrance. So likewise is one who, intentionally and without excuse, exposes, in the house of another, his person to a girl eleven years old."

§ 715. "Whoredom " "Whore." A "whore" is a woman given to promiscuous commerce with men, usually for hire.6 The term "whoredom" appears to be less narrow. Within it has been held to be any single act of adultery between a married female and a male not her husband."

§ 716. "Lewdness"— differs in meaning both from "whoredom" and from "prostitution." The court, in one case, not defining it, said: "The argument for the defendant, that the word 'lewdness' in the statute applies only to the commonlaw offense of open and public indecency, cannot be supported. We have no doubt that it includes illicit sexual intercourse and the irregular indulgence of lust, whether public or private." 8

1 Com. v. Catlin, 1 Mass. 8; S. v. Marvin, 12 Iowa, 499. See, however, S. v. Cagle, 2 Humph. 414.

Williams v. S., 64 Ind. 553, [31 Am.
R. 135.]

"Sheehey v. Cokley, 43 Iowa, 183,

2 Com. v. Munson, 127 Mass. 459, [22 Am. R. 236; Fahnestock v. S., 102

[34 Am. R. 411.]

3 Fowler v. S., 5 Day, 81, 84.

Ind. 156, 1 N. E. R. 372.]

7 Rodebaugh v. Hollingsworth, 6

4 S. v. Millard, 18 Vt. 574, [46 Am. Ind. 339. D. 170.]

5 Com. v. Wardell, 128 Mass. 52. And see S. v. Osborne, 69 Mo. 143;

8 Com. v. Lambert, 12 Allen, 177, 178. Compare with Com. v. Catlin, 1 Mass. 8. See also S. v. Rye, 9 Yerg. 386.

§ 717.Public indecency."-In Indiana, where there are no offenses at common law, these words were adjudged to be too indefinite in meaning to create an offense.' Thereupon the legislature expressed its own sense of their signification by substituting for them a provision against the indecent exposure of the person in a public place. And Bicknell observes: "The term 'public indecency' was always held to apply especially to indecent exposures of the naked human body; and our statute, as amended, is substantially a re-enactment of a part of the common law.' 992

718. Cohabitation under void marriage. that one of these statutes is not violated by under a void marriage supposed to be valid. of them are."

II. THE PROCEDURE.

We have seen a cohabitation Probably none

§ 719. Course of discussion.- We shall consider, first, the indictment; secondly, the evidence.

First. The indictment:

Previous explanations.-The explanations of the indictment in the last three chapters, and particularly the last, will serve in some measure for the present chapter.

Follow statute.-The rule, ordinarily sufficient, is that the indictment for this offense should cover the statutory terms, and it need not in general be much expanded beyond."

§ 720. Marriage. Under some of the statutes there is scope for the doctrines already considered as to averring or negativing a marriage."

§ 721. Together"-" With each other "— - (Joint).Some of the statutes have the one, some the other, of these form of words. As in the offense treated of in the last chapter, so in this, the pleader must cover them by his allegations. And it is, at least by some, deemed legally impossible for one

8

1 Jennings v. S., 16 Ind. 335; S. v. 69 Mo. 143; P. v. Colton, 2 Utah, 457; Huey, 16 Ind. 338.

2 Bicknell, Crim. Pr. 448, 449.

3 Ante, § 712.

[S. v. Stubbs, 108 N. C. 774, 13 S. E. R. 90; Com. v. Dill, 159 Mass. 61, 34 N. E. R. 84,] and cases cited in subse

4 Com. v. Hunt, 4 Cush. 49. And quent sections.

see ante, § 666.

5 Post, § 724; Williams v. S., 64 Ind. 553, [31 Am. R. 135;] S. v. Osborne,

6 Ante, § 673, 687, 693, 700.

7S. v. Clinch, 8 Iowa, 401.

8 Ante, § 702.

party to commit this offense unless the other commits it also.1 Still,

Convictions several. As in the offense explained in the last chapter, the one may be prosecuted without the other, or may even be convicted after the other is acquitted.'

§722. Time-(Continuando or not). This offense, like that treated of in the last chapter, may be charged as continuing or not, at the election of the pleader.

§ 723. "Lewd, etc., person.”—On a statute making punishable "lewd, wanton and lascivious persons in speech or behavior," it is sufficient in allegation to say that at, etc., the defendant "was and still is a lewd, wanton and lascivious person in speech and behavior."6

§ 724. Further of following statute.-In further illustration of the rule of following the statute,—

Open and public. It was in Tennessee held necessary to aver that the acts constituting the offense were openly and publicly committed."

Specific acts. Under a Missouri statute making punishable "every person, married or unmarried, who shall be guilty of open, gross lewdness or lascivious behavior," the simple following of the statutory words was adjudged good. This is believed to be the true doctrine, yet hardly consistent with an earlier case in the same state.10

§ 725. Secondly, The evidence:

Circumstantial evidence-is competent, and it may be sufficient; " but→→

Hearsay-such as rumor and neighborhood talk, is inad