Watson v. State

• Decision Date: 08 March 1940
• Citation: 142 Fla. 218,194 So. 640
• Parties: WATSON et al. v. STATE.
• Court: Florida Supreme Court

194 So. 640

142 Fla. 218

WATSON et al. v. STATE.

Florida Supreme Court, Division B.

March 8, 1940

Rehearing Denied April 1, 1940.

Error to Circuit Court, Okaloosa County; A. G. Campbell, Judge.

W. A Watson and Kate Mathis were convicted of living in an open state of adultery, and they bring error.

Affirmed.

BROWN J., and WHITFIELD, P.J., dissenting.

COUNSEL

Mulkey & Mulkey, of Geneva, Ala., and Whitfield &amp Whitfield, of Tallahassee, for plaintiffs in error.

George Couper Gibbs, Atty. Gen., and T. J. Ellis, Asst. Atty. Gen., for defendant in error.

OPINION

CHAMPMAN Justice.

The record in this case discloses that W. A. Watson and Kate Mathis were informed against in two counts by the State Attorney of Okaloosa County, Florida, on the 26th day of April, 1938, and the second count, on which plaintiffs in error were convicted, charged that they not then and there being married to each other, did unlawfully live in an open state of adultery, the said W. A. Watson then and there being married, and the unlawful cohabitation is alleged to have occurred within two years prior to Jan. 1, 1938, in Okaloosa County, Florida. The defendants below were placed upon trial and convicted under the second count of the information and by the trial court each was sentenced to serve a period of two years at hard labor in the State Penitentiary. From this judgment of conviction a writ of error has been taken to this court and several assignments of error argued for a reversal.

The second count of the information is drawn under Section 7549, C.G.L., viz.:

'Whoever lives in an open state of adultery shall be punished by imprisonment in the State prison not exceeding two years, or in the county jail not exceeding one year, or by fine not exceeding five hundred dollars. Where either of the parties living in an open state of adultery is married, both parties so living shall be deemed to be guilty of the offense provided for in this section.'

This Court has, from time to time, construed the statute, supra, and has consistently held that the burden is on the State to show that the parties lived together openly as if the relation of husband and wife existed. A mere occasional illicit intercourse is not sufficient to meet the requirements of the statute, but it must be shown that there was a living or residing together openly, as if the conjugal relation existed. See Langford v. State, 124 Fla. 428, 168 So. 528; Campbell v. State, 92 Fla. 775, 109 So. 809; Gordon v. State, 86 Fla. 255, 97 So. 428; Lockhart v. State, 79 Fla. 824, 85 So. 153; Whitfield v. State, 85 Fla. 142, 95 So. 430; Alford v. State, 76 Fla. 122, 79 So. 437; Cloud v. State, 64 Fla. 237, 60 So. 180; Thomas v. State, 39 Fla. 437, 22 So. 725; Luster v. State, 23 Fla. 339, 2 So. 690; Brevaldo v. State, 21 Fla. 789.

The record shows that W. A. Watson had a home near Geneva, Alabama. His second wife was then suffering with pulmonary tuberculosis in an advanced stage. He was financially able to take care of his wife and pay all costs incident to her illness, and it was her desire that her husband not expose himself to the disease by attending her, but withdraw from the home and go elsewhere so that he would not contract the dreadful disease. Pursuant to this suggestion, Watson left his home near Geneva and en route to Port St. Joe, Florida, learned at Crestview of an opportunity to go into business, and there met Kate Mathis, a widow, and mother of a boy some 8 or 10 years of age who was living with her.

The parties operated a small grocery business on the highway near Crestview for some two or three years, as alleged in the information. Living quarters were maintained at the place of business. The house contained three bedrooms and each occupied respectively by Kate Mathis, Watson and the son. The laundry was sent out in one lot and separated when returned. Watson gave his time to the business and Kate Mathis assisted. Dancing parties were had at the place in which plaintiffs in error participated. It was understood by those acquainted with the place that the three persons lived in the building, but whether or not plaintiffs in error roomed together was not generally known.

One of the witnesses who had been employed at the place testified that she had seen Watson and Kate Mathis in the same bed. Another testified to the effect that she saw Watson sitting on the bed where Kate Mathis was confined, suffering from a broken pelvis bone and at the time she was in a plaster cast. While the record fails to disclose the age of Kate Mathis, we infer from our study thereof that she was younger than Watson, who at the time was 45.

The defendants during the progress of the trial offered a number of witnesses who had, from time to time, been around the business and none of these witnesses saw or observed conduct of impropriety on the part of the defendants. While we cannot overlook the minimum legal requirement to be fully established by the State in cases of this nature, the fact remains that because of the very nature of the accusation the inclination on the part of those involved to conceal and to cover up their guilty actions, it is often difficult to meet the quantum of proof to sustain a conviction. The policy of the law is to permit evidence of circumstances, the conduct, attitude or improprieties of the parties that would throw any light upon the issues.

While it is true that the evidence offered on the part of the State to establish illicit intercourse on the part of the defendants named in the information is none too strong, the jury charged with the responsibility of...