65 Fla. 146 | Fla. | 1913
On October 22nd, 1912, an information was filed in the Criminal Court of Becord of Dade County against T. J. Pitchford and Alicia Clark charging that on September 6th, 1912, “in the county and State aforesaid then and there, to and with each other, were then and there for a period of time extending oyer two years last past from the date of the filing of this information, guilty of open and gross lewdness and lascivious behavior, contrary to the form of the statute,” etc. It is based on Section 3519 of the General Statutes of 1906, which is in these words:
“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 information is based on the last clause which we have italicized. They were tried in October, 1912, convicted and sentenced. The case is here for review on writ of error.
There are eighteen assignments of error, but we shall only consider the last one, which questions the sufficiency of the evidence to sustain conviction. It is admitted by both parties that no case has heretofore been brought to this court based on the second clause of the section of the General Statutes of 1906, which we have quoted and italicized, and we can find none.
It seems to us that the “open and gross lewdness and lascivious behavior” denounced by the statute, must be such conduct as would bring upon a husband and wife
It seems from this witness the doors were shut and shades pulled down. He states that no one could see into the room through the windows without going very close and peering in. He did not see anything until he got into the room where defendants were. Mr. Pratt saw them sitting beside each other on the bed as close as they could get.
There were a number of witnesses who testified that Pitchford frequently visited the house of Alicia in the day time. He sometimes went into the house, but not a particle of testimony showing open and gross lewdness and lascivious "behavior. The conduct of the defendants was reprehensible, but it is not shown to be of the kind denounced by this statute. Commonwealth v. Catlin, 1 Mass. 7.
The judgment is reversed.