demeanor. It is never necessary to detail in an indictment all the facts which the prosecution expect to prove, in order to make out a case, nor is the defendant ever entitled to them. He is entitled to a plain and concise statement or description of the offense charged against him, in order to be enabled to make his proper defense, and to enable him to plead a conviction thereunder in bar of another prosecution for the same offense.

In the construction of penal statutes care must be taken not to put such a construction upon the language as would include the innocent as well as the guilty. The evil to be guarded against must be kept in view. Com. v. Stout, 7 B. Mon. 249. We will not likely go astray if, with this rule always before us, we keep in remembrance that other indispensable rule, namely, that the intention of the legislature must be sought and followed, except that the construction must not be repugnant to the clear meaning of the words used. With these rules to guide, the cases cited by appellant under this second heading are clearly not inconsistent with our views of the proper construction to be put upon the statute under consideration. The only object of those references is to show that the indictment should have added the words "as wives" to the word "cohabit," and this we have shown would have availed nothing.

The offense with which the defendant is charged is purely statutory, and it is a new offense in our statutes. It is a general rule, well settled, that in an indictment for an offense created by statute, it is sufficient to describe the offense in the language of the statute. People v. Colton, 2 Utah, 457; People v. Cronin, 34 Cal. 191; Lodano v. State, 25 Ala. 64; People v. Murray, (Cal.) 7 PAC. REP. 178; People v. Soto, 63 Cal. 165.

The supreme court of the United States says that where a person is indicted for a purely statutory offense, it is sufficient in the indictment to charge the defendant with acts coming within the statutory description in the substantial words of the statute, without further expansion. U. S. v. Simmons, 96 U. S. 360. Where a new offense has been created by statute, without reference to anything else, it will be sufficient to describe the offense in the terms of the act. People v. Saviers, 14 Cal. 29; People v. Shaber, 32 Cal. 38. To the general rule of describing statutory offenses in the language of the statute there are exceptions; the principal ones being (1) when the statute makes that an offense which was an offense at the common law; and (2) when the offense is described in the statute in terms too general. The cases cited by the appellant come within the one or the other of these exceptions. As we have shown above, the indictment in the present case would have been no more certain and plain than it is, even if the definition of the word "cohabit" had been embraced therein. The word has an established meaning, and the indictment gives such particulars of time, place, and names of the women, as to inform defendant wherein he was charged with having

violated the law. If the case falls within either of the exceptions to the general rule, and would require more particularity, it has not been shown. It was the duty of the appellant to have done this. State v. Abbott, 31 N. H. 434; 1 Whart. Crim. Law, § 364.

The alleged offense is not claimed to have been an offense at common law; therefore it does not fall within the first of these exceptions, and it does not fall within the second exception, unless the description is in language too general to give the defendant information to which he is entitled to enable him to prepare his defense, or to plead the judgment hereafter in bar of another prosecution for the same offense, or too general to guide the court in passing sentence. If the indictment had charged the defendant with "cohabiting with more than one woman," without giving the names of the women, or without time and place, it would have been insufficient in not giving particulars, so as to enable defendant to make proper defense, or to plead the judgment hereafter.

In the exposition of a statute, the intention of the legislature is to be sought and followed, unless by doing so the construction to be given is repugnant to the clear meaning of the words; and if the meaning of the words is plain and obvious, the only safe course is to suppose the legislature intended those things which the words denote. Leoni v. Taylor, 20 Mich. 155. If the language is clear, it is conclusive, and the words must not be narrowed down to the exclusion of what the legislature intended to embrace; but the intention must be gathered from the words. That sense of the words should be adopted which best harmonizes with the context, and promotes in the fullest manner the policy and objects of the legislature. U. S. v. Hartwell, 6 Wall. 385.

What, then, was the object of the congress in enacting this statute? It was, judging from the whole act, intended to be an aid in breaking up polygamy and the pretense thereof. The well-recognized difficulty of reaching the polygamy cases by reason of having to prove marriage, and by reason of the fact that the statute of limitations. bars prosecutions after three years, no doubt led congress to pass this act. It was sought to break up the polygamic relation. It was necessary, in effect, to make polygamy a continuous offense, without requiring proof of marriage. Whether marriage took place or not, the pretense of marriage-the living, to all intents and purposes, so far as the public could see, as husband and wife,-a holding out of that relationship to the world,-were the evils sought to be eradicated. Although aimed primarily at such a relationship, it reaches out and embraces all men living and dwelling with more than one woman as if they were married, whether any marriage had ever taken place or not. It was living and dwelling together under the appearance of being married. The appellant insists that cohabitation necessarily includes sexual intercourse, and that there can be no cohabitation without it.

We find nothing whatever in the language or context to

lead us to believe that congress meant to apply the statute to lewd and lascivious cohabitation, which would be the case if the construction contended for by the appellant were correct.

The primary meaning of "cohabit," is to dwell with, (con, with, and habere, to dwell;) and at the present day it is generally held to mean, to dwell or live together as husband and wife, or to dwell or live together in the same company, place, or country. Calef v. Calef, 54 Me. 365; Com. v. Calef, 10 Mass. 153; Ohio v. Connoway, Tapp. 90. This meaning is recognized in appellant's brief (p. 4) where it says that "in looking to the common signification of the word 'cohabit' we find but two meanings: one broad and generic, and including all residents of the same ward, town, city, or even country; and the other, the living together as husband and wife." The brief proceeds to place the construction upon the latter words which we have here referred to, and which we do not think are warranted.

That learned author, Mr. Bishop, says that he knows of no legal authority or usage that would embrace sexual intercourse in the word "cohabitation," except the casual misapprehension of Chancellor WALWORTH in Dunn v. Dunn, 4 Paige, 425, 428. 1 Bish. Mar. & Div. (4th Ed.) § 777, note 1. The authorities of the appellant on this point do not shake the position that cohabitation does not include sexual intercourse. The word does not even include necessarily the occupying the same bed. 4 Paige, 428.

In Forster v. Forster, 1 Hag. 144, where matrimonial intercourse was sought to be enforced between man and wife, the court drew the distinction plainly between "matrimonial intercourse" and "matrimonial cohabitation," holding that "the duty of matrimonial intercourse" could not be compelled, but that "matrimonial cohabitation" could be. The case of Orme v. Orme, 2 Eng. Ecc. R. 354, was brought by the wife against her husband for restitution of conjugal rights. The libel admitted that the complainant was "allowed by the said Robert Orme to reside in the same house with him," and the court held that this admission of "cohabitation" admitted the complainant out of court, and that she might have been restored to cohabitation; yet as that was admitted to exist, and the court could go no further, that the court had no power to restore the complainant to matrimonial intercourse with her husband.

Had it been the intention of congress to include the common sexual vices in this provision, it appears unreasonable that it should not have said so. It evidently did not intend to include lewd or lasciv ious cohabitation; for, had it so intended, it would have added those words. When the bill was under consideration in congress, their attention was specially called to the matter, and it could not, therefore, have been an oversight. A member (Mr. Singleton) offered an amendment, whereby it was proposed to reach all of the sexual vices, and to punish adultery, fornication, open and notorious lewdness, etc.; but the amendment was voted down. Cong. Rec. March 15, 1882. Thus

congress clearly gave expression to their view, that no such offenses were to be embraced in the act. The crimes which congress proposed to punish were such as a large part of the people, especially in this territory, were upholding and practicing. The other vices were such as all people disapprove, and hence congress left their suppression to the local authorities. The interpretation we have given to this provision-the third section-is, as we think, the one best calculated to effect the object intended by congress and to suppress the evil. Hence, independent of the statutes of this territory governing pleadings in criminal cases, we think the indictment is sufficient; that it was not necessary to have added the words "as wives" to the description of the offense as set out in the indictment, nor to have given any particulars of the facts necessary to be proved, beyond what were given, and especially that it was not necessary to allege anything in regard to sexual intercourse. We have, however, a criminal procedure act in this territory which governs the mode and manner of criminal pleading, and we now come to consider that act, and see what effect it has upon the matters necessary to be stated in the indictment.

The criminal procedure act of this territory is to the criminal practice what the civil procedure act is to the civil practice. People v. King, 27 Cal. 507. As we are bound by the criminal procedure act, it is unnecessary to inquire what was the rule at common law, when the statute speaks. People v. West, 49 Cal. 610; People v. Murphy, 39 Cal. 52; People v. Cronin, 34 Cal. 191. The criminal procedure act says: "All forms of pleading in criminal actions, and the rules by which the sufficiency of pleadings is to be determined, are those prescribed by this act." Utah Laws 1878, p. 91. If the indictment will stand the test of these rules, it will be sufficient, no matter how much it might fall short of what would have been necessary at common law. People v. King, 27 Cal. 510; People v. Dick, 37 Cal. 277; People v. Cronin, 34 Cal. 191; People v. Murphy, 39 Cal. 52.

In section 150 of the criminal procedure act it is provided what the indictment must contain. After specifying that it must give the names of court and parties, it says the indictment must contain "a clear and concise statement of the acts or omissions constituting the offense, with such particularities of the time, place, person, and property as will enable the defendant to understand distinctly the character of the offense complained of, and answer the indictment." A form of indictment is given. Section 151 provides that the indictment must be direct and certain as it regards (1) the party charged; (2) the offense charged; and (3) the particular circumstances of the offense.

Section 158 specifies that the indictment will be held good if it can be understood from it, (among other things not here brought in question,) so far as the description of the offense goes, "that the act or

omission charged as the offense is clearly and distinctly set forth, without repetition, and in such manner as to enable the court to understand what is intended, and to pronounce judgment upon a conviction, according to the right of the case."

To have enabled the defendant to answer the indictment, it could not have been necessary that he should have been apprised of the fact by express averment that he was a "male person;" nor could it have been necessary, as we have seen, to make him to understand the character of the offense charged, and to answer it, that the offense should have been otherwise or more particularly described than has been done. The offense is clearly and distinctly set forth,-there is no repetition,—and it is set out in a manner sufficient to enable the defendant and the court to understand it, and to guide the court in pronouncing judgment.

If appellant thought the indictment defective in either respect, he should have demurred. Crim. Proc. Act, § 192, (Laws Utah 1878, p. 101.) The defects were such as could have been reached by demurrer. As appellant did not demur, he waived his objections. Section 200, Crim. Proc. Act; People v. Swenson, 49 Cal. 388. By said section 200 it is provided that all objections mentioned in section 192, authorizing demurrer, if they appear on the face of the indictment, can only be taken advantage of by demurrer, except that the objection to the jurisdiction of the court over the subject-matter of the indictment, and the objection that the facts stated do not constitute a public offense, can be taken at the trial, under the plea of not guilty, or after trial in arrest of judgment. The objections urged are such as appear on the face of the indictment, and neither objection goes to the jurisdiction of the court. If, then, the indictment alleges facts sufficient to constitute a public offense, it is sufficient, and there is no remaining objection to the indictment that the appellant can raise after having failed to demur. We have already seen that a public offense was clearly and concisely alleged. The appellant, however, raised the objections at the trial, claiming that the indictment was too defective to allow of the admission of any testimony under it. Yet, from what we have said, it plainly appears that there were no grounds for the objections, and that if there were they had been waived.

We are brought now to the consideration of the alleged errors in excluding testimony offered by the defense. Several questions were by the defense asked a witness for the prosecution, which were objected to by the prosecution as irrelevant, immaterial, and incompetent. The avowed object of these questions, as stated by the defense, was to show, or tend to show, non-access during the time charged, and as tending to disprove any presumption of sexual intercourse which might be raised by the testimony of the witness. The objections were sustained. The defense made an offer of proofs, the gist of which was to the same effect. Part of the offer was wholly hear