Spikes v. State

• Decision Date: 23 January 1911
• Citation: 54 So. 1,98 Miss. 483
• Court: Mississippi Supreme Court
• Parties: MARVIN SPIKES ET AL. v. STATE OF MISSISSIPPI

54 So. 1

98 Miss. 483

MARVIN SPIKES ET AL. v. STATE OF MISSISSIPPI

Supreme Court of Mississippi

January 23, 1911

October 1910

APPEAL from the circuit court, Harrison county, HON. T. H. BARRETT Judge.

Marvin Spikes and Mrs. B. B. Evans were convicted of unlawful cohabitation under section 1029, of Code 1906.

The facts are stated in the opinion of the court.

Case reversed and remanded.

J. H Mize, for appellant.

"This is a proceeding under section 1029 of the Code of 1906, and the intercourse must be habitual. Granbery v. State, 61 Miss. 440; Brown v. State, 8 So. 257.

If we should consider that all the testimony of the state is true they have only shown two acts of intercourse, and that was on the very day these parties were arrested; the charge having been made against them before these two acts were committed, that was on the 26th day of January, 1910, at B. B. Evans' house at night, and old man Carver's house in the morning.

Thomas v. State, 28 Texas App. 300, 11 S.W. 1098, is decisive of this case. It was a much stronger case, because there were a number of acts of intercourse.

To the same effect is State v. Cassida, 67 Kansas 171, 72 P. 522; and the repeated decisions of this state hold that occasional acts on intercourse does not constitute the crime, and we think the state failed to make out a case in this case, and the verdict is contrary to the law and evidence in this case.

James R. McDowell, assistant attorney-general, for state.

I refer your honors to vol. 1, A. and E. Enc. Law, 2d Ed., page 72, where it is said: "From the nature of the offense, adultery is not, save in exceptional cases, susceptible of direct and positive proof. It can more often be established by evidence more or less circumstantial in its nature." And further, "Hence, it is considered that direct proof of carnal knowledge is not necessary. It is sufficient to show circumstances from which the jury may reasonably infer the guilt of the parties."

See similar treatment of the subject on page 1124, vol. 13, A. and E. Enc. 2d Ed., under the head of fornication.

It has been held that a verdict of guilty would be sustained although the guilty acts could only be proven on one day, if stopped by arrest, if it is reasonable to conclude from the evidence that it was the purpose of these parties to continue their unlawful relations. Here, it is shown that there was ample opportunity for this connection to continue over a great length of time. And I submit that the evidence shows that this was but a continuance of what had already existed.

OPINION

MCLAIN, C.

Appellants were convicted of unlawful cohabitation in the circuit court of Harrison county, Miss., and from that conviction and sentence they appeal to this court.

We will first give a few of the leading facts as disclosed by the record. Mrs. Evans was living in the country with her husband. On account of domestic troubles, she left her husband the latter part of June, 1909, and went to her mother's home in Gulfport. Her mother was keeping a boarding house. Mrs. Evans stayed with her mother, working in a laundry and a store. While in Gulfport, the testimony shows that Marvin Spikes was in her company quite often, and visited her occasionally at her mother's boarding house. On one occasion he was seen to give her some money. While she was in Gulfport, no acts of sexual intercourse or undue intimacy between her and Spikes were shown. About the middle of December, 1909, she went out in the country to a friend's, a Mr. Carver's, and remained there about three or four weeks. While there, Spikes came out two or three times, and they seemed pleased to be in each other's company. On the morning of January 26, 1910, Mrs Carver and husband claimed to have seen defendants under such circumstances that strongly suggested that they had had, or were about to have, sexual intercourse with each other. On the following night they were watched by B. B. Evans, husband of appellant, Mrs. B. B. Evans, and by two other parties. These parties claim to have seen them indulging in sexual intercourse. A few moments after this...