possession of them. The respondent is seeking the land simply for the purpose of using upon it these and similar improvements. When they were placed upon the land, condemnation could not take place. Now when condemnation can take place, respondent seeks to compensate appellant and thus establish its right to a continued use of the land. Under the law the respondent has the right to take the land, paying therefor just compensation. The improvements are to that extent treated as public, and the case is different from that of a private individual putting upon land improvements for his individual use and for no public purpose. Under these circumstances it would be inequitable and unjust to compel respondent to pay for its own improvements. We think that such is the ruling in the great majority of the cases where the question has been raised: Morgan's Appeal, 39 Mich. 675; Toledo R. Co. v. Dunlap, 47 Mich. 486; 22 Wis. 581; 42 Wis. 538; 28 N. J. Eq. 450; 24 N. J. Law, 736; 31 N. J. Eq. 31.

The fact that respondent when it built the railway and railway improvements was a trespasser upon government land, is not material to the issue. The government could have ejected the company, but it did not do so. The company became a trespasser, not with a view of permanently holding the land without paying for it, but to hold it temporarily and until it could be condemned in manner provided by law. Because the company was then a trespasser, it does not follow that it should lose its railroad. It would then have no use for the ground, unless it bought back both the land and the railroad. The motion for a rehearing is denied.

ZANE, C. J., and POWERS, J., concurred.

4 121 7** 493

WILLIAM BURROWS, RESPONDENT, v. EDWARD F.
M. GUEST, APPELLANT.

Petition for rehearing; post p.

ZANE, C. J.:

This is a petition for rehearing, from which it appears that the plaintiff filed his complaint for trespass, in the district court, which the defendant answered; that the issues were tried by a jury and a verdict rendered for plaintiff; that judgment was entered thereon, from which defendant appealed to this court; that the appeal was heard and decided by a divided court when composed of the predecessors of its present members, and that no opinon has been filed.

In view of these statements and the fact that the exceptions presented important questions, which we are not prepared to decide as now advised, we are of the opinion that a rehearing ought to be granted.

The court so orders.

POWERS, J., and BOREMAN, J., concurred.

9* 299

4 122 4 187 4 177

4 288 4 317 4 493

5 74

5 164

5 170

5 227

5 234

5 269

5 441

6 124 6 126 7369

7 398 7* 405

9* 505

9* 700

11* 535

11* 543

13* 675

13* 678

14* 289

14* 293

14* 345

17* 77

21* 464

21* 465

4 122 22 251 4 122 23 290

THE UNITED STATES, RESPONDENT, . ANGUS M.
CANNON, APPELLANT.

AFFIRMED: 116 U. S., 55.

CRIMINAL LAW.-INDICTMENT.-- UNLAWFUL COHABITATION. An in-
dictment for the offence created by section 3 of the Act of Con-
gress of March 22, 1882, Ch. 47, 22 Stat. 31, need not state that
the defendant is a male person, even if the defendant's name be
not a distinctively masculine name. It is presumed that the de-
fendant is charged as a male person, when he is charged with an
offence which could only be committed by such a person.
ID. --STATUTORY OFFENCE. -In an indictment for an offence created
by statute it is sufficient to describe the offence in the language
of the statute. So in an indictment under section 3 of the act
above referred to it is unnecessary to allege that the cohabitation
charged therein was in the marital relation, although said section
was only intended to apply to unlawful matrimonial cohabita-
tion.

ID. EVIDENCE. SEXUAL INTERCOURSE, The offence of cohabiting
with more than one woman created by said section 3, is com-
mitted by a man who so associates with two women as to hold
them out to the world as his wives, and it is not essential to the
commission of such offence that he should have sexual inter-
course with either of them.

ID.---INSTRUCTIONS.-IMMATERIAL OR MISLEADING. Certain requests for instructions, stated in the opinion, held to be properly refused.

APPEAL from a judgment of the district court of the third district, and from an order refusing a new trial. The facts are stated in the opinion of the court.

Messrs. Sutherland & McBride, for appellant.

The indictment is bad for the reason that it does not state a case including all the elements of the offense defined in the third section of the Edmunds act.

We invoke the rule, which is settled beyond all controversy, that an indictment must allege all the facts necessary to fill every particular of the statutory or common law definition of the offense sought to be charged: 1 Am. Cr. L. Secs. 285, 288; 1 Bish. on Cr. Pr., Secs. 326, 508, 517,

521; Bish. on St. Cr., Sec, 612, and note; 1 Arch. Cr. Pl. and Pr., 86 note; State v. McKenzie, 42 Me., 392: Koster v. People, 8 Mich., 431; Enders v. People, 20 id, 233; Palmer v. People, 43 id, 417; Wood v. People, 53 N. Y., 511; People v, Allen, 5 Denio, 79; Brown v. Commonwealth, 8 Mass., 65.

Under the head first stated, we rely on two defects of the indictment.

1. It fails to allege that defendant is a "male person." Where the offence consists of an act done by a person of a particular description, the indictment must allege that the defendant is a person of that description: People v. Allen, 5 Denio, 79; Ex Parte Hedley, 31 Cal., 108;. Commonwealth v. Libby, 11 Met., 64; King v. John, 3 M. and S. 548.

2. The indictment does not allege that the defendant put forth any pretense of marital relation to the women. therein mentioned.

The third section denounces all cohabitation of a male

person with more than one woman. To confine it to a cohabitation with them, under a claim of marriage, the court must interpolate words which the lawmaker has not inserted. This court has held that it is not competent so to interpret and change a statute: Logan City v. Buck, 3 Utah 301, 306; Leoni v. Taylor, 20 Mich., 155; Tynan v. Walker, 35 Cal., 639, 643.

But the prosecution advocates this restrictive construction, and the charge of the court to the jury apparently adopted the same view.

While we controvert the construction contended for by the prosecution, and insist that the section applies to all males who cohabit with a plurality of women, we contend that the indictment is not framed on that reading of the statute, which the court below seemed to adopt. It is fatally defective if that construction is the correct one. does not state a case within section three if it refers only to matrimonial cohabitation.

It

It must contain allegations of fact, filling every particular, in the description of the offense as defined by construction of the statute: Bates v. State, 31 Ind., 72; Schmidt v.

State, 78 id., 41; Commonwealth v. Slack, 19 Pick., 304; Commonwealth v. Bean, 11 Cush., 414; Commonwealth v. Stout, 7 B. Mon., 249; The Mary Ann, 8 Wheat., 389.

This indictment should have alleged that the defendant, cohabited with the women as wives.

Messrs. Bennell, Harkness & Kirkpatrick, also, for appellant.

Mr. W. H. Dickson, for respondent.

BOREMAN, J.:

On the seventh day of February, 1885, the defendant, Angus M. Cannon, was indicted in the third district court for the crime of unlawful cohabitation. After trial and a verdict of guilty, he made his motion for a new trial, which was overruled, and thereupon, on the seventh day of May, 1885, he was sentenced to the penitentiary for six months and to pay a fine of three hundred dollars. From the order overruling the motion for a new trial, and from the final judgment the defendant has appealed to this court. The body of the indictment reads as follows:

"The grand jurors of the United States of America within and for the district aforesaid, in the territory aforesaid, being duly empaneled and sworn, on their oaths do find and present that Angus M. Cannon, late of said district, in the territory aforesaid, heretofore, to-wit, on the first day of June, in the year of our Lord one thousand eight hundred and eighty-two, and on divers other days and continuously between the said first day of June A. D. 1882, and the first day of February, A. D. 1885, at the county of Salt Lake and territory of Utah, did unlawfully cohabit with more than one woman, to-wit: one Amanda Cannon, and one Clara C. Mason, sometimes known as Clara C. Cannon, against the form of the statute of the said United States in such case made and provided, and against the peace and dignity of the same."

The appellant claims that the indictment is insufficient, and that it was error to admit evidence under it. He relies upon two alleged defects in the indictment.