75 Fla. 751 | Fla. | 1918
Mattie Hodge and W. J. Grice were convicted in the Circuit Court of St. Lucie County of living in an open state of adultery, and seek reversal here on writ of error.
A deputy sheriff and two other witnesses testified that they went at about midnight to a house owned by the father of Mattie Hodge, and found the defendants and a young girl there. The house had but one bedroom 14x16 in which were two beds and other furniture. When the inmates were awakened a light was struck in the house and Grice told the sheriff to wait a little as he had to put on some clothes, and in a few moments he opened the door. He had on his trousers and was in his bare feet. Mattie Hodge was in bed with her foster-sister, her first cousin, a girl of thirteen years of age. The house belonged to E. M. Baker, the father of Mattie Hodge, and was built on a place that he had homesteaded. There was another house on the place about seventy-five feet away, in which there was a bed, where Grice usually slept when.Baker’s family were at home. Baker, testified that he had been living about three years on the place, that he and his wife were living there when Grice came to live with them; that as he was away part of the time and wanted somebody to be on the place he let Grice live with them; Grice paid him $4.00 a week board while there, and slept in the little house just off from the main house “about all the time,” but sometimes he slept in the main house with the family, and when he did Baker and Grice occupied one bed; that besides himself and wife, his son-in-law Bob Davis and his wife stayed in the house while he was working down at the canal; when Mr. and Mrs. Davis stayed in the house Davis and Grice occupied one bed and Mattie and Mrs. Davis and their foster-sister occupied the other. Baker’s testimony is corroborated by his wife, his son and daughter and her husband, and the girl Lula King.
Much of the testimony introduced for the purpose of establishing the guilt of the defendants, by cdrcunn stantial evidence, was as immaterial as this. ,
There is no testimony that Mattie Hodge cooked for
It is uncontroverted that the only occasion when the defendants were seen in this house when Mattie’s father or married sister and her husband were not there, her foster-sister, a thirteen year old girl, was with them. There is not a particle of testimony of any acts of affection between these parties, and no evidence of immorality between Grice and Mattie Hodge other than the fact that they were found in the same room in the night time, but as Lula King was in the room also, and in the bed with Mattie, whatever of immorality this freedom of intercourse showed, affected Mattie and Lula alike. Mr. Baker, Mattie’s father, also testified: “I have never seen them acting in an affectionate way toward each other. I raised all my kids straight and everybody that knows me knows I have. Sometimes there were a good many of us sleeping in that one room at á time — when they were' all there. Sometimes my son-in-law and his wife would' be there and we would all sleep in the same room. I never thought it was wrong for us all to sleep in the same room. I have seen lots of it done.”
Walter Lawhorn, one of these parties, testified that the sheriff sent him out on another occasion to see if there was anyone there besides Mattie and Grice and that he found Mr.’ and Mrs'., Davis, and “Mr. Grice was sawing on a fiddle.” This witness also, testified that Grice stayed there “a pretty good while at times and
In the case of Brevaldo v. State, 21 Fla. 789, this court said: “Still there must be a living together openly as if the legal relation of husband and wife existed between the parties; -a mere occasional illicit intercourse is not sufficient, but there must be a living or residing together openly as if the conjugal relation existed.”
In the instant case there is no testimony of a single instance of illicit intercourse between these parties. It is not necessary to prove the offense . of which these defendants were convicted, by direct evidence, because from the very nature of the case it must generally be proven by circumstances which raise the presumption of cohabitation and unlawful intimacy, but as was said in Searles v. People, 13 Ill. 597, cited approvingly by this court in the case of Brevaldo v. State, supra: “But this presumption must be something more than a mere supposition. It must amount to a reasonable belief or conviction of the judgment, not only of the unlawful intimacy, but also of cohabitation.”
The statute of Florida which makes the living in an open state of adultery a punishable offense contains no definition of the crime, and wemiist resort to the established definitions sanctioned by the authorities which seem to include all cases of incontinence where either one of the parties is married to a third person. The mere living together of two persons of opposite sexes, either of whom is married to a third person, does not constitute the offense of living in an open state of adultery, but there must be acts of sexual intercourse between them to constitute adultery -is the gravamen of
We think the evidence in this case is insufficient to support the verdict, and the judgment is reversed.