Turney v. State

• Decision Date: 16 February 1895
• Citation: 29 S.W. 893,60 Ark. 259
• Parties: TURNEY v. STATE
• Court: Arkansas Supreme Court

29 S.W. 893

60 Ark. 259

TURNEY v. STATE

Supreme Court of Arkansas

February 16, 1895

Appeal from Marion Circuit Court, BRICE B. HUDGINS, Judge.

Reversed and remanded.

E. G Mitchell and Marshall & Coffman for appellant.

A single act is not sufficient under our statute. 32 Ark. 19; 13 Ill. 597; 36 Ark. 86; 56 Mo. 147; 19 N.E. 330; 1 Am. & Eng. Enc. Law. 211, 212. There must be a residing together for some period of time, and habitual illicit intercourse. One night at a stranger's house is not sufficient.

E. B Kinsworthy, Attorney General, for appellee.

No certain length of time is necessary to constitute the offense. Cohabitation means to dwell and live together as husband and wife. One day or night is sufficient. Reviews 32 Ark. 187; 36 id. 86; 36 id. 39.

OPINION

WOOD J.

The defendant was convicted of the crime of illegal cohabitation. The proof showed that he and a certain woman, traveling from Searcy county, stopped over night at the house of a lady in Marion county. They claimed to be husband and wife, and slept in the same bed. They were not married.

The court instructed the jury that "if defendant, being at the house of Mrs. Wilson, in company with Margaret Nelson, falsely represented to Mrs. Wilson that Margaret Nelson was his wife, and obtained lodging in her dwelling house for one night by reason of said false representation, slept in her bed in said house with said Margaret Nelson and you believe he had sexual intercourse with the said Margaret Nelson while in said bed, you will be authorized to believe they cohabited together as husband and wife, within the meaning of the statute." Proper exceptions were saved to this, and the defendant asked the court, in substance to declare the opposite, which was refused. Does the above instruction declare the law? "Cohabit" means "to dwell with; to dwell or live together as husband and wife" Webster. To "dwell" means "to abide as a permanent resident, or to inhabit for a time; to live during a considerable period in a place; to have habitation for some time or permanence; to be domiciled; to remain." Webster. The law lexicographers define it: "To dwell together in the same house; to live together as husband and wife; to live together in the same house, claiming to be married." Rapalje's Burril's, Bouvier's and Kinney's Law Dictionaries, verbo, "Cohabit."

In Calef v. Calef, 54 Me. 365, it is said; "The primary meaning of the word 'cohabit' is to dwell with some one, not merely to visit or see them. It includes more than that." In Com. v. Calef, 10 Mass. 153, it is said: "By cohabiting must be understood a dwelling or living together, not a transient and single unlawful interview." Mr. Bishop, in his work on Marriage, Divorce and Separation, says: "To cohabit is to dwell together, so that matrimonial cohabitation is the living together of a man and woman ostensibly as husband and wife." Sec. 1669. And in a note to this section he approves of the definition given in Ohio v. Connoway, Tappan, 90, where "cohabiting" is defined as "a living together in the same house; a boarding or tabling together," carrying "with it the idea of a fixed residence;" in contradistinction to a mere traveling in company together.

In an Indiana case, where the statute prohibits...