King v. United States

• Decision Date: 11 January 1927
• Docket Number: No. 2510.,2510.
• Citation: 17 F.2d 61
• Parties: KING v. UNITED STATES.
• Court: U.S. Court of Appeals — Fourth Circuit

17 F.2d 61 (1927)

KING v. UNITED STATES.

No. 2510.

Circuit Court of Appeals, Fourth Circuit.

January 11, 1927.

Joseph W. Ervin, of Charlotte, N. C. (Carswell & Ervin, of Charlotte, N. C., on the brief), for plaintiff in error.

Thomas J. Harkins, Asst. U. S. Atty., of Asheville, N. C. (F. A. Linney, U. S. Atty., of Charlotte, N. C., and Frank C. Patton, of Morganton, N. C., and Kenneth J. Kindley, of Charlotte, N. C., Asst. U. S. Attys., and William Wolff Smith, Gen. Counsel, U. S. Veteran's Bureau, of Washington, D. C., on the brief), for the United States.

Before WADDILL and ROSE, Circuit Judges, and SOPER, District Judge.

ROSE, Circuit Judge.

The plaintiff in error was plaintiff below and will be so called here. She is the widow of one John King and the beneficiary designated in his war risk insurance policy. He entered the army in September, 1918, and died in the succeeding January. For something over three years thereafter she received from the government the monthly installments of $57.50 each, payable under the policy, but in 1922 it notified her that in its view she had forfeited her rights under it by open and notorious illicit cohabitation with one Holt. Thereafter the payments were made to the mother of the deceased soldier. The plaintiff brought this suit to recover the installments which had been withheld from her. The government counterclaimed for those paid her subsequently to March, 1919, when her improper relations with Holt began.

She was the first witness in the case, and at the close of her testimony the learned District Judge concluded that, in view of the story she herself told, it would be a waste of time to go further. He accordingly then and there instructed the jury to return a verdict for the government. Was he right in so doing? There are other assignments of error, but plaintiff's counsel frankly says that it will be unnecessary to consider them, unless we are of opinion that the account the plaintiff gave of her life left an issue for the jury.

She testified that she was married in 1917 and lived with her husband until he went into the army. Some 15 months after her marriage a child was born to them. A month or so after her husband's death, she began to receive the attentions of Holt, and in another month, having as she says his promise of marriage, she permitted him a single act of sexual intercourse. As a result a child was born. Holt was employed by a travelling circus, and shortly after the intercourse referred to his occupation took him away from the city in which she was living. He wrote to her occasionally, and sent her some money for the expected child. She says she never wrote to him, because, as the circus was moving from place to place, she did not know where a letter would reach him. She does not make it quite clear how he knew that she was with child. She testifies that she did not see him again until some nine months after the baby was born, and that then she did not want to have an interview with him, but that her relatives persuaded her to allow him to call, in the hope that he would right the wrong he had done her. At all events, they met. According to her account, he renewed his promise of marriage, and for the second and last occasion had sexual intercourse with her, with the result that in the fullness of time she gave birth to twins. If what she says is to be taken at its face value, there were only two acts of intercourse, with an interval of 18 months between them; but they brought into the world an aggregate of three children. She testified that Holt never spent a night or took a meal with her.

The question for determination is whether her testimony left it possible for reasonable men to believe that she had not been guilty of "open and notorious illicit cohabitation" with Holt, within the meaning of that phrase as found in the act of Congress. The word "cohabit" is used in the law in many different senses. Sometimes, as in the Louisiana statute providing for the punishment of incest, or in that of New York describing the circumstances under which one who was under the age of consent when he or she went through the marriage ceremony may validate the union after arriving at that age, it is substantially the equivalent of sexual intercourse, whether on one occasion or on many, and no matter how little anybody but the parties may have had an opportunity to know or suspect it. State v. Freddy, 117 La. 122, 41 So. 436, 116 Am. St. Rep. 195; Herrman v. Herrman, 93 Misc. Rep. 315, 156 N. Y. S. 688. On the other hand, where a court is asked to presume marriage from the fact that the parties cohabited together, something more than even frequent and habitual sexual intercourse must be shown. They must have so lived and acted that, to those knowing them, their relations appeared to be those of husband and wife. Yardley's Estate, 75 Pa. 207. In short, as was said in a Minnesota case: "In order to give it the word `cohabit' proper effect in any given case, regard must be had to the subject-matter to which it relates, to the situation and conditions in respect to which it is used, and to the explanatory and qualifying language accompanying it." State v. Gieseke, 125 Minn. 497, 147 N. W. 663.

For many years the right of a pensioned widow of a deceased soldier to her pension ceased upon her remarriage. Experience proved that a not inappreciable number of women pensioners cared more for their pensions than they did for their reputation or their chastity, and as a consequence became in everything but name the wives of other men, although they were careful...