Luster v. State

• Decision Date: 15 July 1887
• Citation: 23 Fla. 339,2 So. 690
• Parties: LUSTER and another v. STATE.
• Court: Florida Supreme Court

2 So. 690

23 Fla. 339

LUSTER and another v. STATE.

Florida Supreme Court

July 15, 1887

Writ of error to the circuit court, Levy county.

Indictment for lewd and lascivious cohabitation. Verdict of guilty, and sentence. Defendants bring error.

Syllabus by the Court

SYLLABUS

In a trial for any criminal offense not punishable capitally, a circuit judge may charge the jury orally, if he is not requested, on behalf of the state or the prisoner before the evidence is closed, to charge in writing

To convict of the offense of lewdly and lasciviously associating and cohabiting together, under section 7, p. 375, McClel. Dig., the evidence must show a dwelling or living together by the parties as if the conjugal relation existed. A single or mere occasional acts of incontinency are insufficient to sustain the charge.

The object of the statute is to prohibit the public scandal and disgrace of such living together by persons of opposite sexes who are unmarried to each other.

COUNSEL The Attorney General, for defendant in error.

OPINION

RANEY J.

The statute under which the plaintiffs in error were convicted enacts that, 'if any man and woman, not being married to each other, lewdly and lasciviously associate and cohabit together,' they shall be punished as therein provided. Section 7, p. 375, McClel. Dig. The indictment charges the offense to have been committed in Levy county on January 1, 1885, and on divers other days between such day and the first day of November of the same year, and that the parties were not married to each other. The trial took place on the twenty-first day of April, 1886.

The first assignment of error is that the circuit judge erred in charging the jury orally, instead of by a written charge. In trials for misdemeanors, or for felonies not punishable capitally, to which class this case belongs, the charge may be oral, unless, before the evidence is closed, the judge is requested to charge in writing. Section 35, p. 338, McClel Dig.; Burroughs v. State, 17 Fla. 643. The record does not show that there was any request that the charge should be in writing, and consequently the assignment is not well made.

The other assignments are, in effect, that the evidence is not sufficient to support the verdict, and that the circuit judge erred in refusing to grant a new trial.

The testimony in behalf of the state is that four or five years or, as another witness says, more than two years, before the trial, the plaintiffs in error went off together from the home of Peggy's husband, where Peter had been boarding and rented a house. Peter stayed in this house with her, they staying together about five years. Just before they went off Peggy's husband, who had got tired of boarding Peter, told him he must leave. The husband says he never saw any cohabiting or immoral conduct on their part, and never saw them in bed together; that some time after Peggy left she kept a restaurant or boarding-house in Bronson, and Peter and others boarded with her. Another witness (a son of the husband) says that before they went off as stated above, and about three years before the trial, he saw them in bed together at the husband's house. The last witness says he went once to one house they occupied, and peeped in at a crack, but did not see anything. Another witness says that about four or two years before the trial she went, in the day-time, to a house the prisoners were staying at; that there was more than one room in the house; she did not see but one bed; that Peggy 'was sitting up at the fire-place, and Peter was lying on the bed with the baby.' The record does not show whose baby it was. Another witness for the state says the plaintiffs in error have lived together ever since they left the house of Peggy's husband; that when they were at one house he frequently passed it before day, and sometimes would call, but...