State v. Naylor

• Decision Date: 16 December 1913
• Citation: 68 Or. 139,136 P. 889
• Parties: STATE v. NAYLOR.
• Court: Oregon Supreme Court

136 P. 889

68 Or. 139

STATE v. NAYLOR.

Supreme Court of Oregon

December 16, 1913

Department 1.

Appeal from Circuit Court, Washington County; J.U. Campbell, Judge.

Edward L. Naylor was convicted of lewd and lascivious cohabitation and appeals. Reversed and remanded for new trial.

The defendant was indicted for the crime of lewd and lascivious cohabitation. The charging part of the indictment is as follows: "That the said defendant, Edward L. Naylor, on the 20th day of November, A.D.1912, in the county of Washington, state of Oregon, then and there being, and not being then and there intermarried with one Martha Traver, a female person, did then and there willfully and unlawfully lewdly and lasciviously cohabit and associate with her, the said Martha Traver, contrary to the statutes in such cases made and provided and against the peace and dignity of the state of Oregon."

Section 2075, L.O.L., is as follows: "If any man and woman, not being married to each other, shall lewdly or lasciviously cohabit or associate together, such man or woman, upon conviction thereof, shall be punished by imprisonment in the county jail not less than one nor more than six months, or by fine not less than $50 nor more than $300."

There was no demurrer to the indictment. The trial court admitted over the objection of plaintiff, evidence to the effect that the conduct and manner of living of the defendant and Martha Traver caused comment and criticism in the community.

The defendant's counsel requested the following instructions which were given striking out the words "and of course implies sexual intercourse." The defendant excepted to the modification of the instruction. The court gave the following instruction to which defendant's counsel excepted:

"A 'cohabitation,' within the meaning of the statute upon which this indictment is based, means the living together of a man and woman as husband and wife; the living together in one house; a boarding or tabling together at a fixed residence or abode, followed by the conduct which naturally arises between man and wife by reason of the marriage relation, and of course implies sexual intercourse."

"Cohabitation does not necessarily imply actual sexual intercourse. So far as this case is concerned, it is such conduct upon the part of the individuals as would naturally lead people to believe that they were having sexual intercourse; that is would make people believe that they were living together as man and wife, with everything that the marriage relation implies."

The jury returned a verdict of guilty, and from a judgment on that verdict the defendant appeals.

George R. Bagley, of Hillsboro (Bagley & Hare, of Hillsboro, on the brief), for appellant.

E.B Tongue, of Hillsboro (Thos. H. Tongue, Jr., of Hillsboro, on the brief), for the State.

McBRIDE, C.J. (after stating the facts as above).

The first error assigned in the appellant's brief was the admission by the court of evidence tending to show that the conduct of defendant and Miss Travers was the subject of comment and criticism in the community. The learned district attorney has cited to us no case, and we have been unable to find one, which holds evidence of this character to be admissible. It is plausibly argued that, as the gist of the offense is its tendency to cause scandal and corrupt public morals, the fact that scandal was caused may be proved as a substantive fact in the case. This would be a dangerous doctrine to ingraft upon the law. The question is not whether defendant's conduct was commented upon by a few or even many people, but was it such as in the mind of a reasonable man would tend to cause scandal and tend to induce the belief in the minds of reasonable people that the relations between the parties were meretricious. Any other rule would substitute hearsay and the opinion of some members of the community for that testimony as to the facts which the law always requires. The authorities support this view. 2 McClain, Crim. Law, § 1135; Belcher & Fox v. State, 27 Tenn. (8 Humph.) 63; Buttram v. State, 44 Tenn. (4 Cold.) 171. The admission of this testimony was error.

We are of the opinion that the modification of the instruction requested by the defendant was error. The great weight of authority is to the effect that there must be evidence of sexual intercourse between the parties in order to complete the offense. Luster v. State, 23 Fla. 339, 2 So. 690; State v. Marvin, 12 Iowa, 499; Commonwealth v. Calef, 10 Mass. 153; Jones v. Commonwealth, 80 Va. 18; Pruner v. Commonwealth, 82 Va. 115; State v. Miller, 42 W.Va. 215, 24 S.E. 882; Pinson v. State, 28 Fla. 735, 9 So. 706; Searls v. People, 13 Ill. 597; Sullivan v. State, 32 Ark. 187; Lyerly v. State, 36 Ark. 39; Kinard v. State, 57 Miss. 132.

The cases cited by the district attorney in opposition to this view arise under different statutes and are therefore not in point. Thus in the case of Cannon v. U.S., 116 U.S. 67, 6 Sup.Ct. 278, 29 L.Ed. 561, the statute provided that a man should not "cohabit with more than one woman"; the object of the statute being to prevent polygamous households in the territory of Utah. The words "lewd and lascivious" found in our statute do not occur in that act. It was sufficient that a man should dwell and abide with more than one woman, and what was said by the court in that case must be considered with reference to the statute there discussed.

In the case of State v. Chandler, 96 Ind. 591, the statute made it criminal for persons not married to each other to cohabit with each other in a state of adultery or fornication. The indictment charged that the persons named "not being married to each other did then and there unlawfully live and cohabit together as man and wife." The objection to the indictment was that there was no allegation that the defendants cohabited together in a state of adultery and fornication and that therefore the indictment was not within the statute. The court held that the allegation that they lived and cohabited together as man and wife necessarily included a charge that they cohabited together in a state of fornication or adultery and that the indictment was sufficient. In Cox v. State, 136 Ala. 94, 34 So. 168, 41 L.R.A. 760, the defendant was indicted upon a statute similar to that in Cannon...