Pinson v. State

• Decision Date: 21 July 1891
• Citation: 28 Fla. 735,9 So. 706
• Parties: PINSON .v STATE.
• Court: Florida Supreme Court

9 So. 706

28 Fla. 735

PINSON .v STATE.

Florida Supreme Court

July 21, 1891

Error to circuit court, Madison county; JOHN F. WHITE, Judge.

Plaintiff in error and Maggie Johnson were indicted at the fall term A. D. 1890, of the circuit court for Madison county for lewd and lascivious association and cohabitation, and at the spring term, A. D. 1891, after arraignment and plea, were convicted of the offense charged in the indictment.

Syllabus by the Court

SYLLABUS

1. In the offense of lewd and lascivious association and cohabitation, under section 7, p. 375, McClel. Dig., there is included both lewd and lascivious intercourse and a living or dwelling together as if the conjugal relation existed between the parties.

2. In order to convict the defendants of lewd and lascivious association and cohabitation, the evidence must satisfy the jury beyond a reasonable doubt that said defendants were not married to each other, and that they lived or dwelt together as though the conjugal relation existed between them, in lewd and lascivious intercourse. The jury are the sole judges of what facts and circumstances constitute such a living together; and in a case where the lewd and lascivious intercourse depends upon circumstances, the trial judge trenches upon the province of the jury if he attempts to substitute his inference from the facts of the case for what might be theirs.

3. An exception taken to a portion of a charge must be considered in connection with the remainder of the charge on the same subject; and if the charge, taken as an entirety, is free from the objection urged, the exception will not be sustained.

4. It is a settled rule that a general exception to a charge, or a general exception to several charges, will not be good if the charge or any of the charges excepted to contain a correct proposition of law applicable to the case.

5. It is not error to refuse to give instructions asked, though they contain correct propositions of law, if the judge has already given correctly in substance such instructions.

6. A recital in a motion for a new trial of itself does not afford evidence that the matters recited transpired during the trial.

COUNSEL

Alexis M. Michelson, for plaintiff in error.

William B. Lamar, Atty. Gen., for the State. The testimony, as certified to us by the bill of exceptions, was as follows:

Randall Johnson, a witness for the state, testified: 'I know John Pinson and Maggie Johnson, [the witness points them out.] They are not now, nor have ever been, married to each other. I lived for two or three years about one-fourth of a mile from John Pinson. In February, 1889, Maggie Johnson came to live at Pinson's house, and has lived there ever since, and is living there yet. She had then one child. I have seen them together, going to and coming from church and other places. I often called at the house. Pinson always occupied a room on the west end of the house. I do not know where Miss Maggie slept. About fifteen months after Miss Maggie came there she had a baby. About seven months after Mr. Pinson was married again. Just before he was married I had a talk with Miss Maggie. She asked me if the father could take her baby away from her if she were to swear the child to him. I said 'No, I don't think so, since it is a girl. But why do you ask? Does Pinson threaten to take it away from you?' She said, 'I did not say who the father was.' I went there one night, and Maggie and Pinson were in his room. Maggie got sleepy after a while, and Pinson said, 'Go to bed, Maggie.' I got up soon thereafter and went off. I left them there together. Cross-examination: I never saw anything indecent or suspicious between Maggie and Pinson. Do not know whether Miss Maggie was hired or not by Pinson. Pinson's mother-in-law and her son, and Pinson's little girl by his first wife, and also my brother, who was hired by Pinson, lived in the same house.'

Webb Carraway, for the state, testified that Miss Maggie lived in Pinson's house ever since February, A. D. 1889; that 'she came there with one child. Pinson's house is a double log-pen house, with a passage between, and shed-rooms. One of the shed-rooms was occupied as a bedroom by the hired man, and the other served as a kitchen and dining-room. The east side of the house was a bedroom, and Pinson's mother-in-law and her son slept in it; and the west end of the house was also a bedroom. It had two beds. Pinson, with his child, and Maggie Johnson and her child, slept in that room. I knocked at the door of that room every morning, to get the keys to feed the stock with, and Miss Maggie passed them to me through the crack in the door. About fifteen months after Miss Maggie came there she had a baby. On the night of her confinement I went for the doctor. Pinson sent me, and gave me a horse to go on. He attended on Maggie. Miss Maggie often spoke to me about the baby. She told me sometimes that Pinson was the father of it, and sometimes Sam Johnson, Mr. Pinson was married some seven months ago. Miss Maggie stays there yet. Miss Maggie and Pinson are not married. Cross-examination: Miss Maggie was hired by Pinson. She cooked and washed.'

Defendant Pinson made the following statement: 'I hired Miss Maggie to take care of my house. My first wife's mother was too old, being sixty-five years of age. I wanted some one to take care of her and my child. I had nothing wrong to do with Miss Maggie, and am not the father of her child.'

The defendant Maggie Johnson stated that 'the reason I slept in the same room with Mr. Pinson is that it was the only room with a fire place, and I wanted one on account of my baby and child.' This was all the testimony.

The court charged the jury as follows: 'The state of Florida by an indictment found by a grand jury of your county, charge the prisoners at the bar with lewdly and lasciviously associating and cohabiting together, by cohabiting and having carnal knowledge of each other, and that they were not married to each other. The statute under which these defendants are indicted and prosecuted reads as follows: 'If any man and woman, not being married to each other, lewdly and lasciviously associate and cohabit together; or if any man or woman, married or unmarried, is guilty of open and gross lewdness and lascivious behavior.' You will observe that this indictment is found under the first clause of the act, to-wit: 'If any man or woman, not being married to each other, lewdly and lasciviously associate and cohabit together,' shall on conviction be punished, etc. This offense, like offenses of a kindred character, are peculiarly offenses that, carried on or perpetrated are perpetrated in secret, and the proof of its existence must of necessity depend in many cases largely on circumstances proven, going to show the guilt or innocence of the accused. It is not essential that the witnesses should be able to and should testify to having seen the defendants in the actual act of cohabitation or coition in order to find a verdict of guilty It is sufficient if the facts and circumstances proven are such as to satisfy your minds beyond a reasonable doubt that the defendants associated and cohabited together habitually as husband and wife, or as though the marital or conjugal relation existed between them.

'If you believe from the evidence, and are satisfied beyond a reasonable doubt, that the defendants were not married to each other, and should be further thus satisfied that the defendants within two years last before the 17th of October, 1890, lived together and habitually slept in the same room with only a young child each with them; that they so lived and slept for twelve or fifteen months; that there were several other rooms in their said house other than the room they slept in; and should further be satisfied that a child or children were borne by the defendant Maggie Johnson, and that she laid them on--or the youngest one--to the defendant John Pinson; and should be further satisfied that during and at the time of Maggie's confinement at the birth of said child or children, the defendant John Pinson had her attended to by a doctor and nursed during her said confinement as though she was his wife,--then you may and should find the defendants guilty, unless those circumstances are explained by the evidence in some way consistent with the presumption of defendants' innocence. But proof of a single act of cohabitation or of an occasional act of coition between the parties is not sufficient to constitute the offense. The object of our statute is to prohibit the public scandal and disgrace of such living together by persons of opposite sexes and unmarried to each other, and to prevent such evil and indecent examples with their tendency to corrupt public morals. You may and should consider all the facts and circumstances as proven; as, for instance, whether the evidence shows the consent of the woman, and the will and consent of the man, and whether or not there was an opportunity to gratify their natural passions for sexual intercourse. And to justify a verdict of guilty the evidence must show that the defendants dwelt and cohabited together as if the conjugal relation existed between them, and that they habitually consorted together for weeks or months next before the finding of the indictment.

'(2) And, as before remarked, if the evidence satisfied your mind beyond a reasonable doubt that the house at which the defendants lived had a number of rooms, and that the defendants chose to sleep to themselves in a room with only a young child with each, for twelve or fifteen months or more next before the finding of indictment in this case; that a child or children was born to them; that the defendant Pinson had a doctor, or nurse, or both, to attend...