Whitehead v. State

• Decision Date: 21 July 1904
• Citation: Whitehead v. State, 48 Fla. 64, 37 So. 302 (Fla. 1904)
• Parties: WHITEHEAD v. STATE.
• Court: Florida Supreme Court

37 So. 302

48 Fla. 64

WHITEHEAD v. STATE.

Florida Supreme Court, Division A.

July 21, 1904

Error to Circuit Court, Holmes County; Lucius J. Reeves, Judge.

Jeff Whitehead was convicted of crime, and brings error.Reversed.

Syllabus by the Court

SYLLABUS

1.To convict of the crime of lewd and lascivious cohabitation denounced by section 2596, Rev. St. 1892, there must be proved both lewd and lascivious intercourse, and a living or dwelling together as though the conjugal relation existed between the parties.Where the proofs show a residing together of the parties, but are silent as to any lewd and lascivious intercourse between them, there can be no conviction of the crime.

COUNSELLiddon & Smith, for plaintiff in error.

W. H Ellis, Atty. Gen., for the State.

OPINION

TAYLOR C.J.

The plaintiff in error, Jeff Whitehead, together with one Alice Peterson, was indicted, tried, and convicted of the crime of lewd and lascivious cohabitation in the circuit court of Holmes county, and from the sentence imposed the said Jeff Whitehead seeks relief here by writ of error.Several errors are assigned upon rulings on applications for postponement of the trial to procure the attendance of absent witnesses, but from the conclusion we have reached as to the merits of the case it becomes unnecessary to pass upon such assignments of error.

The defendant moved for a new trial upon the ground, among others, that the verdict was not warranted or supported by the evidence.This motion was denied, exception duly taken and its denial is assigned as error.

By a long line of decisions here, as elsewhere, it is settled that to convict of the offense of lewd and lascivious cohabitation and association, denounced by section 2596, Rev. St. 1892, there must be proved both a lewd and lascivious intercourse and a living or dwelling together as if the conjugal relation existed between the parties.Penton v. State,42 Fla. 560, 28 So. 774;Pinson v. State,28 Fla. 735, 9 So. 706;Thomas v State,39 Fla. 437, 22 So. 725;Luster v State,23 Fla. 339, 2 So. 690.No useful purpose can be subserved by recapitulating the proofs in the case here, but it will be sufficient to say that while it shows that the defendantJeff Whitehead sometimes lived at the house of the other defendant, Alice Peterson, while several other persons also resided there, yet there is a total lack of proof to show that at any time within the...