72 P. 522 | Kan. | 1903
The opinion of the court was delivered by
Appellants were convicted under that portion of section 2221 of the General Statutes of 1901 which reads as follows:
“Every .man and woman (one or both of whom are married, and not to each other) who shall lewdly and lasciviously abide and cohabit with each other, . . . shall on conviction be adjudged guilty,” etc.
It appeared that Mrs. Pearce, although married, was not living with her husband. She lived on a farm owned by her. Cassida was employed by her as a farm hand the year round and paid regular monthly wages as such. They lived together in the same house and for a great part of the time without any other persons living with them. It was shown that early one morning in the month of May, 1901, and before they had arisen, a neighbor called at Mrs. Pearce’s house for the purpose of borrowing a lister. The inmates being aroused, Cassida was seen coming from the ’direction of Mrs. Pearce’s bedroom in a'
It was appellants’ theory upon the trial, and now urged here, that the object of this statute is not to punish secret acts of unchastity, immorality, or lasciviousness, but rather to prohibit and punish acts going to the dishonoring of the marital relation; that the relationship of husband and wife, the rearing of children, and the institution of the home and family founded thereby, are essential to society, and acts to be punished under the quoted provisions of the statute must be shown to be inimical to this relationship; that single and isolated acts of sexual commerce are not punishable thereunder; that the gravamen of the offense is that such acts must take place between the parties named under such circumstances,as they ordinarily do where the relation of husband and wife exist ; in short, that a man and woman, one or both of
There is no question as to the correctness of appellants' theory, and that it would apply here if the facts were not such as authorized the jury in finding that, in addition to the relationship of mistress and servant, there existed the other apparent relationship of husband and wife. The mere fact that Cassida was receiving a monthly wage from Mrs. Pearce, and living in the same house with her as her hired man, does not foreclose all question, nor render them immune from conviction under this statute, nor relieve them entirely from legal inquiry as to the quality of their acts.
Illicit cohabitation is a crime at common law, and our statute seeks but to recognize it in the catalogue of statutory crimes. It is not committed by a single act, or even occasional acts, of intercourse. There must be a living together. This living together need not be for any particular length of time — even a single day has been held sufficient. (Hall v. The State, 53 Ala. 463.) But there must be a cohabitation — an abiding together. There must be that familiar and easy relationship between the parties which characterizes the relation of husband and wife. If this relationship be shown, the parties are guilty, regardless of other existing relations. The question always is, upon all the evidence, whether the relationship was such as to induce the belief that they were dwelling
The fact that Gassida was a hired man and the relation of master and servant existed between the parties was proper to be shown and to be considered by the jury, but that relationship did not necessarily exclude the existence of the relationship denounced by the statute. While the relation of master and servant might exist, there could also exist the other relationship of lewd and lascivious cohabitation. In this case, suppose Gassida had not been hired and the parties had lived as they were shown to have lived, there can be no question as to their guilt under the ■statute. It cannot fairly be claimed that the fact that he was paid a monthly wage — a fact known only to the parties except as they told it — should necessarily
The judgment of the district court will be affirmed.