Jones v. Commonwealth

• Decision Date: 08 January 1885
• Parties: JONES v. THE COMMONWEALTH.
• Court: Virginia Supreme Court

80 Va. 18

JONES v. THE COMMONWEALTH.

Supreme Court of Appeals of Virginia.

January 8, 1885

Error to judgment of corporation court of Danville, rendered June 9th, 1884, sentencing D'Orsay Jones to pay a fine of fifty dollars and costs on an indictment against him for lewd and lascivious cohabitation with one Kate Oliver, without being married to her.

Opinion states the case.

A M. Aiken, for the plaintiff in error.

Attorney-General F. S. Blair, for the Commonwealth.

OPINION

FAUNTLEROY J.

The plaintiff in error was tried and convicted in the corporation court of Danville upon an indictment for unlawful, lewd and lascivious association and cohabitation with one Kate Oliver being unmarried to each other at and during the time.

The verdict of the jury imposed a fine of $50, and the court gave judgment for the said fine and the costs against the accused; and to that judgment this writ of error was awarded by this court.

The errors assigned in the petition are the refusal of the court to give an instruction which was asked for by the defendant, as set forth in " Bill of Exception No. 1," and the action of the court in giving to the jury, on their application, the oral instruction embraced in " Exception No. 2," and in refusing and overruling the motion to set aside the verdict and grant a new trial, upon the ground that the verdict was contrary to the law and the evidence, which constitutes the third bill of exception, setting forth a certificate of facts.

In the view which we take of the facts certified to have been proved in this case, it is necessary to pass in review only the third and last bill of exception, as that goes fully both as to the law and the evidence in the case.

The indictment in this case is framed and founded on the seventh section of chapter 7, New Criminal Procedure, page 302, Acts 1877-'78, which is in these words: " If any persons, not married to each other, lewdly and lasciviously associate and cohabit together, or, whether married or not, be guilty of open and gross lewdness and lasciviousness, they shall be fined not less than $50 nor more than $500," & c.

This section of the statute is not designed to punish for the offences of fornication or adultery. Those are the subject of section 6, chapter 7, of New Criminal Procedure, page 302, Acts 1877-'78.

The offence charged in the indictment is to " lewdly and lasciviously associate and cohabit together" --" not married to each other." It is a statutory offence, and the statute must be strictly conformed to. Commonwealth v. Isaacs and West, 5 Rand. 635.

The terms " not married to each other" and " lewdly and lasciviously associate and cohabit together" clearly explain the meaning of the statute as intended to apply to cases where a man and a woman, " not married to each other," live together as man and wife live together, without the sanction of the nuptial tie. There must be " cohabitation, " and there must be lewd and lascivious cohabitation. There must be a living together.

" Cohabit " is defined by Webster: 1. " To dwell with another in the same place." 2. " To live together as husband and wife." Bouvier defines " cohabit " : " To live together in the same house, claiming to be married; " " to live together in the same house." Obviously the legal sense of the term in the statute is to live together in the same house as married persons live together, or in the manner of husband and wife.

There may be illicit intercourse and even lewd and lascivious intercourse between man and woman, which would be fornication or adultery, as the case might be, and which are punishable...