State v. Brown

• Decision Date: 12 January 1959
• Docket Number: No. 44241,44241
• Citation: 108 So.2d 233,236 La. 562
• Parties: STATE of Louisiana v. James BROWN and Lucille Aymond.
• Court: Louisiana Supreme Court

Page 233

108 So.2d 233

236 La. 562

STATE of Louisiana v. James BROWN and Lucille Aymond.

No. 44241.

Supreme Court of Louisiana.

Jan. 12, 1959.

Harold J. Brouillette, Maxwell J. Bordelon, Marksville, for defendants-appellants.

Jack P. F. Gremillion, Atty. Gen., M. E. Culligan, Asst. Atty. Gen., Charles A. Riddle, Jr., Dist. Atty., Marksville, for plaintiff-appellee.

HAWTHORNE, Justice.

Defendants James Brown and Lucille Aymond were charged in a bill of indictment with the crime of miscegenation 'in that they did habitually cohabit with each other, he being of the Negro race and she being of the White race, they having knowledge of their difference in race'. They were tried jointly, convicted, and sentenced to serve one year in the state penitentiary. Both have appealed.

The statute under which appellants were charged, Article 79 of the Louisiana Criminal Code, provides:

'Miscegenation is the marriage or habitual cohabitation with knowledge of their difference in race, between a person of the Caucasian or white race and a person of the colored or negro race.'

The statute then provides that whoever commits the crime miscegenation shall be imprisoned, with or without hard labor, for not more than five years.

Appellants filed a motion to quash the indictment on the ground that the statute under which they were being prosecuted was unconstitutional because it violates the Equal Protection and the Due Process provisions of the Louisiana and United States Constitutions, in that it make a particular course of conduct a crime when committed by persons of certain races only. The motion to quash was overruled, and Bill of Exception No. 1 was reserved.

As we view the matter, marriage is a status controlled by the states, and statutes prohibiting intermarriage or cohabitation between persons of different races in no way violate the Equal Protection clauses of the state and federal Constitutions. See 16A C.J.S. Constitutional Law §§ 541, 543, pp. 474, 479--480. A state statute which prohibits intermarriage or cohabitation between members of different races we think falls squarely within the police power of the state, which has an interest in maintaining the purity of the races and in preventing the propagation of half-breed children. Such children have difficulty in being accepted by society, and there is no doubt that children in such a situation are burdened, as has been said in another connection, with 'a feeling of inferiority as to their status in the community that may affect their hearts and minds in a way unlikely ever to be undone'.¹

The United States Supreme Court had occasion to consider the identical question presented here in Pace v. State of Alabama, 106 U.S. 583, 1 S.Ct. 637, 27 L.Ed. 207. In that case a Negro man and a white woman were indicted under a provision of the Code of Alabama for living together in a state of adultery or fornication. The Supreme Court, in considering whether the Alabama statute violated the Equal Protection clause of the Constitution and in holding that it did not, stated that the punishment of each offending person whether white or black is the same. This is true of the Louisiana statute here involved.

The next bill which we shall consider has merit and in our view entitles the appellants to a new trial. According to the bill the trial judge in charging the jury defined the term 'cohabitation' as 'access for the purpose of sexual intercourse', and defined 'habitual cohabitation' as 'access for the purpose of sexual intercourse as a matter of habit'. Timely objection was made to this charge, and a bill of exception perfected.

So far as we can ascertain, this court has never had occasion to interpret the words 'habitual cohabitation' as found in Article 79 of the Criminal Code. In interpreting these words we are to be governed by Article 3 of that Code, which provides:

'The articles of this Code cannot be extended by analogy so as to create crimes not provided for herein; however, in order to promote justice and to effect the objects of the law, all of its provisions shall be given a genuine construction, according to the fair import of their words, taken in their usual sense, in connection with the context, and with reference to the purposes of the provision.'

We recognize the fact that the commonly accepted definition of the word 'cohabit' is to 'dwell together'. However, in defining the meaning of the word 'cohabitation' as used in the statute here in question we must take into consideration the context in which the word is used in the statute and the purposes of the law's provisions.

Article 79 of the Criminal Code is based upon Act 206 of 1910, a concubinage statute. To us the word 'cohabitation' as used in Article 79 means sexual relations or acts of sexual intercourse, and under this statute in our view, just as under the concubinage statute, if a person of the Caucasian and a person of the Negro race were living together under the same roof, it would constitute evidence of the crime of miscegenation for this would be strong, if not convincing, evidence of habitual intercourse.

Article 79 is found under that subpart of the Code dealing with 'sex offenses affecting family'. The preceding article in that same subpart, Article 78, provides that incest is the marriage to, or Cohabitation with, any ascendant or descendant, brother or sister, under or niece, aunt or nephew, with knowledge of their relationship. This court as far back as 1906 in the case of State v. Freddy, 117 La. 121, 41 So. 436, 437, had occasion to consider the word 'cohabit' as used in the incest statute then in effect, and concluded in a well reasoned opinion that the meaning of the word 'cohabit' was 'simply that of sexual intercourse'. The word 'cohabitation' in the present incest statute has the same meaning, and we are convinced that its meaning in Article 79 is also the same.

In the miscegenation statute, Article 79, the word 'cohabitation' is preceded by the adjective 'habitual', and the crime denounced is the 'habitual cohabitation with knowledge', etc. Webster's Dictionary defines 'habitual' thus: 'Of the nature of a habit; according to habit; established by, or repeated by force of, habit; customary; as, the Habitual practice of sin; Habitual drunkenness.' As we see the matter, the words 'habitual cohabitation' as used in Article 79 simply mean customary or repeated acts of sexual intercourse, and not merely an isolated case of intercourse.

Obviously, when the trial judge charged the jury that 'habitual cohabitation' meant 'access for the purpose of sexual intercourse as a matter of habit', he committed reversible error, for under this charge an accused could be convicted of the crime of miscegenation without any evidence that sexual intercourse had ever occurred. Such is not the law.

Since we are remanding the case for a new trial, there is another bill of exception which we should discuss because the circumstances under which it was reserved are likely to recur at a subsequent trial of these defendants. This is Bill of Exception No. 2.

The defendants were jointly tried, and at the trial the State offered in evidence and relied on a confession made by each. One of the grounds urged in defendants' motion for a new trial is that the State failed to prove the corpus delicti, and that the confessions of the defendants may not, in and of themselves, serve as a basis of a legal conviction; or, stated somewhat differently, that the confession of an accused standing alone will not warrant a legal conviction.

In the trial of every criminal case the State, to warrant a legal conviction of an accused, must prove the corpus delicti, or the fact that a crime has been committed. Without such proof no conviction will be permitted to stand. Underhill, Criminal Evidence, sec. 35, p. 42 (4th ed. 1935), states the rule as follows:

'Proof of the corpus delicti is essential to a conviction, must be proved beyond a reasonable doubt, and must exclude every hypothesis other than that a crime was committed in order to convict.'

The same authority in discussing the fact that the corpus delicti may be proved by circumstantial evidence says:

'The corpus delicti, and all the elements thereof, may be proved by circumstantial evidence, from which the jury may reasonably infer that a crime has been committed. Such evidence must exclude every reasonable hypothesis except guilt, and be convincing to a moral certainty; and such proof of corpus delicti must be most convincing and satisfactory proof compatible with the nature of the case.' Id., sec. 37, p. 45.

Suspicion, rumor, gossip, or mere hearsay evidence is not sufficient to establish the proof of corpus delicti, and as to confessions we think 23 C.J.S. Crciminal Law § 916, p. 183, clearly sets forth the rule of law which prevails in this state thus:

'Extrajudicial admissions, declarations, or confessions of accused are not of themselves sufficient to establish the corpus delicti. Evidence aliunde such admissions, declarations, or confession Is required in order to establish the corpus delicti.' (Italics ours.)

See also State v. Morgan, 157 La. 962, 103 So. 278, 40 A.L.R. 458; State v. Calloway, 196 La. 496, 199 So. 403.

In 22 C.J.S. Criminal Law § 839, pp. 1471--1472, it is stated: 'As a general rule it is required that the corpus delicti must first have been established before the confession of accused may be admissible, although by...