State v. Gieseke

• Decision Date: 29 May 1914
• Docket Number: No. 18602[7].,18602[7].
• Citation: 147 N.W. 663,125 Minn. 497
• Parties: STATE v. GIESEKE.
• Court: Minnesota Supreme Court

125 Minn. 497

147 N.W. 663

STATE

v.GIESEKE.

No. 18602[7].

Supreme Court of Minnesota.

May 29, 1914.

Appeal from District Court, Brown County; I. M. Olsen, Judge.

Albert F. Gieseke was convicted of fornication, and appeals. Affirmed.

Syllabus by the Court

If a man and an unmarried woman dwell together, and, while so dwelling together, make a practice of indulging in carnal intercourse, they cohabit within the meaning of section 8703, Gen. St. 1913, and are guilty of the offense there defined, although they may ostensibly dwell and associate together for some lawful purpose, and may conceal, or attempt to conceal, their immoral relations. Tom Davis and Ernest A. Michel, both of Marshall, for appellant.

Lyndon A. Smith, Atty. Gen., and John C. Nethaway, Asst. Atty. Gen., and Adolph Frederickson, of Springfield, for the State.

TAYLOR, C.

Section 8703, G. S. 1913, provides: ‘Whenever any man and a single woman cohabit with each other, both shall be guilty of fornication.’

Defendant, having been convicted, in the municipal court of the city of Sleepy Eye, of violating this statute, appealed to the district court upon questions of law alone. The district court affirmed the judgment of the municipal court, and by a further appeal defendant brings the case before this court.

The prosecution asks that the appeal be dismissed on the ground that no judgment has yet been entered in the district court. Counsel has apparently been misled by an error in the printed record. The record returned by the clerk shows that judgment was entered in the minutes of the district court; but in the printed record this judgment, instead of being printed as a part of the proceedings in the district court, is printed as a part of the record of the municipal court. Unlike the procedure in civil cases, the statute contemplates that in criminal cases the judgment shall be pronounced in open court, and the entry thereof be made by the clerk in the minutes. No entry of judgment other than the entry so made by the clerk is required. The judgment in question is sufficient in form and was properly entered in the minutes.

[1] The only question for consideration is whether the evidence is sufficient to sustain the conviction. Defendant contends that ‘cohabit’ as used in the statute means a dwelling together as husband and wife; and that the evidence failed to establish a cohabitation of that character.

The meaning and effect to be given the word ‘cohabit’ has frequently been considered by the courts. In order to give it proper effect in any given case, regard must he 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. Where it is sought to prove cohabitation as evidence that the relation of husband and wife existed between the parties, it means living together as husband and wife and holding themselves out as such, as distinguished from occasionally associating together and from meretricious relations. In re Yardley's Estate, 75 Pa. 211; Brinckle v. Brinckle, 12 Phila. (Pa.) 232; Robinson v. Robinson, 188 Ill. 371, 58 N. E. 906;Olson v. Peterson, 33 Neb. 358, 50 N. W. 155. It has the same meaning in a prosecution for bigamy, where the bigamous marriage took place in another state and the prosecution is based upon the fact of cohabitation with the second wife in the state of the forum. Cox v. State, 117 Ala. 103,23 South. 806,41 L. R. A. 760, 67 Am. St. Rep. 166.

The case of the Commonwealth v. Calef, 10 Mass. 153, is referred to in the authorities as the earliest case to construe a statute making it a criminal offense to ‘lewdly and lasciviously associate and cohabit together,’ and is cited as establishing the doctrine that ‘cohabit’ as so used means to dwell together as husband and wife. The sole question before the court in that case was whether a single act of intercourse, the parties not dwelling together, constituted the offense. The court held that it did not, saying: ‘By cohabiting must be understood a dwelling or living together, not a transient and single unlawful interview.’ In Jones v. Commonwealth, 80 Va. 18, the court said that a similar statute of Virginia was not designed to punish fornication or adultery for the reason that other statutes provided a punishment for those offenses; and held that the term ‘cohabit’ was used in this statute in the sense of living together in the manner of husband and wife. Under similar statutes it was given the same meaning in State v. Miller, 42 W. Va. 215, 24 S. E. 882. In state v. Chandler, 132 Mo. 155, 33 S. W. 797,53 Am. St. Rep. 483, the statute imposed a penalty upon persons who ‘lewdly and lasciviously abide and cohabit with each other.’ Rev. St. Mo. 1889, § 3798. The court say:

‘Its evident object was not to forbid and punish furtive illicit interviews between the sexes, however frequent and habitual their occurrence; but only to make such acts punishable as it plainly designates; acts which necessarily tend by their openness and notoriety, or by their publicity to debase and lower the standard of public morals. Here the interviews between the guilty parties were entirely clandestine; even the servants of the household where the liaison had its headquarters, were not aware of the occurrences which form the basis of the present prosecution. In such circumstances to hold that defendant and his paramour did ‘ abide and cohabit with each other,’ would be to pervert the plain words of the statute, and to convict without evidence.'

The above language perhaps went further than the facts of the case required as the defendant merely made secret visits to the home of his paramour in the nighttime. In State v. West, 84 Mo. 440, and in State v. Coffee, 39 Mo. App. 56, it was held that the acts constituting the offense need not be open and notorious. In State v. Berry, 24 Mo. App. 466, the court say:

‘The statute does not make the living together as man and wife one of the elements of the offense, and hence it was not necessary for the jury to find that the defendants did so live together.’

In State v. Osborne, 39 Mo. App. 372, the court say:

‘The statute does not make it necessary that the lewd and lascivious abiding and cohabiting together should have been as man and wife, or in the ostensible character of man and wife;’ but add that the ‘element of dwelling together for the purpose of having lewd and lascivious intercourse is a necessary ingredient of the offense under the statute, and is necessary to discriminate the offense from occasional acts of illicit sexual intercourse, which, according to the decisions above cited, do not constitute the offense.’

In Carotti v. State, 42 Miss. 334, 97 Am. Dec. 465, the statute makes it a crime to live ‘together in unlawful cohabitation, whether the same be in adultery or fornication.’ The court states that this language implies cohabitation as husband and wife, but the question decided was that the trial court erred in refusing to give an instruction to the jury, asked by the defendant, and couched in the following language:

‘That to justify a verdict of guilty, they must believe from the evidence that the defendant, Mary Wilson, yielded her person generally or habitually to her codefendant, Carotti, for the gratification of his passions, as between husband and wife.’

In Kinard v. State, 57 Miss. 132, the court limit the language used in Carotti v. State, supra, and say concerning it:

‘The decision is that no continuance of illicit intercourse makes out the crime so long as it is secret or attempted to be made so, but that, whenever secrecy is abandoned and the concubinage is open, the offense is complete.’

In State v. Poyner, 57 Wash. 489, 107 Pac. 181, the statute made it a crime to ‘lewdly and viciously associate and cohabit together.’ Ballinger's Ann. Codes & St. Wash. § 7238. The court say:

‘This statute is much broader than the common-law offense of lewdness, and, while there must be a living together as if the conjugal relation existed, and the illicit intercourse must be habitual not merely occasional, it is not necessary that the acts should be open and notorious, or that the parties should hold themselves out to the public as husband and wife. State v. West, 84 Mo. 440;State v. Coffee, 39 Mo. App. 56;Commonwealth v. Lambert, 12 Allen (Mass.) 177; 29 Cyc. 210. ‘The statute includes illegal * * * intercourse, and the irregular indulgences of lust whether public or private.’'

In State v. Kirkpatrick, 63 Iowa, 554, 19 N. W. 660, involving a statute similar to the last, the court say:

‘While occasional acts of * * * intercourse alone may not be sufficient-and it was so held in State v. Marvin before cited -such acts at least show the disposition of the parties, and, when the opportunity is shown and has continued for a long series of years, we think such evidence is entitled to great consideration. This is true as to evidence showing affection for each other, such as kissing. Men do kiss their wives, but ordinarily do not kiss their servant girls. The birth of a child, and the name given to it, were entitled to consideration as tending to show undue intimacy. No virtuous woman would live and sleep in the same room [house contained but one room with two beds] with an unmarried man for years, as this woman did. When all circumstances are considered, we think the jury were fully warranted in concluding that the claim that Mary J. Collins was the defendant's servant, and sustained no other relation to him, is a mere pretense and subterfuge; and that the jury were warranted in concluding that, in all essential particulars, these parties acted as and sustained the relation of husband and wife, and yet they were not married. We do not see how any other conclusion could be reasonably reached.’

In Sweenie v. State, 59 Neb. 269, 80 N. W. 815, the court say:

‘William J. Sweenie was convicted and sentenced under that provision of...