Kinard v. State , 57 Miss. 132 ( 1879 )

Chalmers, J.,

delivered the opinion of the court.

The testimony for the State, which the jury by their verdict have accepted as true, is to the effect that the plaintiff in error, who is an unmarried white man, lived in the same house with the co-defendant, an unmarried negro woman, for a series of years; that there was but one room in the house, and but one bed in that room; that the parties were seen occupying this bed together as man}'- as five or sis times; that they eat at the same table ; and that the woman became during the time the mother of three mulatto children, whom the plaintiff in error was in the habit of caressing and calling his boys. These facts abundantly warranted the verdict of guilty of unlawful cohabitation, and while they were negatived in part by the evidence for the defence, we cannot disturb the verdict of the jury unless error of law occurred to the prejudice of the accused.

It is not necessary, as argued by counsel for the plaintiff in error, that the parties should hold each other out to the world as husband and wife, nor is there any thing in Carotti’s case, 42 Miss. 334, which so declares. When the court announces in that case that, in order to constitute the offence of unlawful cohabitation, “ the parties must dwell together, openly and notoriously, upon terms as if the conjugal relation existed between them,” it is not meant that they should pass themselves off upon the community as husband and wife, but only that they should openly and notoriously consort and live together as if they were husband and wife; that is to say, as husbands and wives usually live. The doctrine enunciated is that clandestine acts of sexual intercourse, no matter how often repeated, do not constitute unlawful cohabitation unless the parties openly and notoriously live together as paramour and concubine, habitually assuming and exercising towards each other the rights and privileges which belong to the matrimonial relation. The decision is that no continuance of illicit intercourse makes out the crime so long as it is secret or attempted to be made so, but that, whenever secrecy is abandoned and the concubinage is open, the offence is complete. In the interests of morality, it is perhaps to be regretted that a more rigorous doctrine cannot be deduced from our present statute and the decisions upon similar statutes elsewhere.

The evidence for the State in the case at bar fairly brings the plaintiff in error within the rule as laid down, nor is there any thing in the instructions of the court of which he can complain. The fourth charge asked by him, and refused by the court, announced tbe doctrine that if the defendants were living in open concubinage at the date of the ratification of our present Constitution, they became by its ratification husband and wife. This theory of the Constitution, if it ever needed refutation, was set at rest by the cases of Rundle v. Pegram, 49 Miss. 751; Floyd v. Calvert, 53 Miss. 37.

Judgment affirmed.