194 So. 640 (Fla. 1940), Watson v. State

Citation:194 So. 640, 142 Fla. 218
Opinion Judge:CHAMPMAN, Justice.
Party Name:WATSON et al. v. STATE.
Attorney:[142 Fla. 219]Mulkey & Mulkey, of Geneva, Ala., and Whitfield & Whitfield, of Tallahassee, for plaintiffs in error. George Couper Gibbs, Atty. Gen., and T. J. Ellis, Asst. Atty. Gen., for defendant in error.
Case Date:March 08, 1940
Court:Supreme Court of Florida
 
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Page 640

194 So. 640 (Fla. 1940)

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

Page 641

[142 Fla. 219]Mulkey & Mulkey, of Geneva, Ala., and Whitfield & 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 [142 Fla. 220] 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...

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