Thomas v. State
| Decision Date | 06 July 1897 |
| Citation | 22 So. 725,39 Fla. 437 |
| Parties | THOMAS et al. v. STATE. |
| Court | Florida Supreme Court |
Error to criminal court of record, Volusia county; Isaac A Stewart, Judge.
Henry Thomas and Mary Long were convicted of crime, and they bring error. Reversed.
Syllabus by the Court
1. To sustain a conviction of the crime of lewd and lascivious association and cohabitation under the provisions of section 2596, Rev. St., the evidence must show a dwelling or living together or cohabitation that is lewd or lascivious. It must show that the parties openly dwell together as though the relation of husband and wife existed between them. Proofs of occasional secret acts of illicit intercourse between them will not, of themselves, sustain the charge.
2. In the offense of lewd and lascivious association and cohabitation there is included both lewd and lascivious intercourse and a living or dwelling together as if the conjugal relation existed between the parties.
COUNSEL F. C. Austin, for plaintiffs in error.
William B. Lamar, Atty. Gen., for the State.
The plaintiffs in error, upon information filed, were tried and convicted in the criminal court of record of Volusia county at its April term, 1897, of the crime of lewd and lascivious cohabitation, and sentenced to 18 months' imprisonment in the state penitentiary, and seek reversal on writ of error.
Their motion for new trial, the denial of which is assigned as error, was upon the ground, among others, 'that the evidence introduced by the state was totally insufficient to convict them of the crime charged.' The information upon which they were tried was predicated upon the first paragraph of the following section (2596) of the Revised Statutes '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, they shall be punished by imprisonment in the state prison not exceeding two years, or in the county jail not exceeding one year, or by fine not exceeding three hundred dollars.'
The evidence upon which such conviction was had was substantially as follows, as appears from the transcript of the record: J R. Turner, for the state, testified: That he knew both of the defendants. That he was sheriff of Volusia county. That about the 21st of February, 1897, between 12 and 1 o'clock at night, he went to the house where Mary Long resided. That when he got there he had reason to believe Thomas was in there with the woman Mary, and he heard them get out of bed, and called to them to come out. Henry said 'All right,' and apparently was trying to get a light. That he heard a racket on the floor, and looked beneath, and saw some one getting through a trap door, and he called to them to come out, and they jumped back in the room. That he then ran against the door, and broke it in, and struck some matches, and saw Henry and Mary in the room together. It was on Sunday night. Neither of them were in bed when he got in the room. Only one bed was in the room. Henry was partly dressed, and she was in her night clothes. That as he pushed the door down he struck a match, and Henry said, 'Don't shoot me,' and fanned out the match with his coat, and he (the witness) fired. Henry Thomas then struck him in the breast, and he sprang back to recover, and as he did so Henry went over him, and jumped and fell on the ground and lay there. Mr. W. P. Edwards, who was with him at the time, searched the house, and found a revolver close to the trap door. We got Mary then. It all happened in Volusia county, Fla. After Henry was arrested, he finished dressing. W. P. Edwards testified that he was a deputy sheriff of Volusia county, and assisted in arresting Henry Thomas and Mary Long. He reiterated, substantially, the testimony of the sheriff. Aaron Adams, for the state, testified that he knew both of the defendants; that he had never seen them associated together,--no further than being in the yard; that he had seen them together in the yard; that he had seem Henry there quite a lot of times; that he had never seen him in the house there, but saw him there in the yard about 10 o'clock at night on the Saturday before he was arrested; that he was in the yard, talking, and he called him; that he had seen him there before at night quite a lot of times; that he (witness) was only passing by when he saw him there; that he had never seen them in that...
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