Dean v. State

^* Headnote 1. Fornication, 26 C.J., section 9; Lewdness, 36 C.J., section 20. Upon an indictment for unlawful cohabitation, appellants were convicted, and assign as error: (1) "The indictment having charged that W.S. Dean, a man and Ralphine Burns, a colored woman, who goes by the name of and is known as ``Mrs. W.S. Dean,' did willfully, lewdly and unlawfully cohabitate together," etc., "and the said W.S. Dean and the woman known as ``Mrs. W.S. Dean' not being then and there lawfully married to each other," etc., it was incumbent upon the state to prove that they were not married to each other. (2) That all the testimony taken together did not establish the guilt of the appellants. And there were other assignments of error growing out of these two assignments, but we will only consider the first assignment, as we have reached the conclusion that this case must be reversed and remanded.

An examination of the record discloses that W.S. Dean and the woman had been living together since 1914, up to the time of the indictment; that from time to time children were born, that there were five or six children in the home; that the woman claimed to be Mrs. Dean; that they lived together in the same house; that no other man was living there in the house.

It will be noted that the indictment charges that the appellants were not married to each other. There is not a scintilla of evidence tending to prove that these defendants were not married to each other, but, on the contrary, the circumstances, declarations, and actions of these parties come dangerously close to establishing a common-law marriage. There was an effort to prove under this indictment that there was a violation of a statute prohibiting intermarriage of races, but the witnesses responded to the district attorney that the children in the home of appellants were as white as the district attorney, and there was a total failure to prove that the woman was of other than the white race.

We think it was necessary for the state to show that these parties were not married to each other. Certainly, people who are married have a right to live together and sustain to each other all the rights and benefits of the conjugal relation.

In Kemp v. State, 121 Miss. 580, 83 So. 744, where the indictment charged that the defendants did unlawfully cohabit together in adultery, we held that:

The words "in adultery" were a matter of substance in the indictment and "should have been proved by the state, since the grand jury had charged that the unlawful cohabitation was a cohabitation by the parties ``in adultery.' Therefore the court erred in permitting the amendment of the indictment with reference to a substantial part of the crime as charged by the grand jury. Whether or not it was necessary in the first instance to charge that the unlawful cohabitation was either in adultery or fornication, since it did not charge habitual sexual intercourse between the parties as the statute prescribes the state could do, we do not decide. But, having specifically charged the cohabitation ``in adultery,' it should have been so proved by the state."

But there is authority to the effect that, whether this is charged in the indictment or not, the presumption of innocence attaches to all defendants, and likewise to those charged with a crime of this nature, and the presumption of marriage arising from facts as detailed above would also give rise to a presumption in favor of good morals and good motives on behalf of the parties concerned. Looking upon men and women as members of society, the state will not presume that the state of man and mistress exists until that is shown.

In Enc. of Evidence, vol. 8, p. 441, section 2, it is said: "Thus the burden is upon the state to establish actual marriage in prosecutions for bigamy or polygamy, and adultery, and criminal conversation."

Also we find in Enc. of Evidence, vol. 5, p. 968, section 3: "Presumptions as to Marriage of Parties. — It is held in some jurisdictions that it must be proved affirmatively that both the parties to the act were single and unmarried; but in other jurisdictions it is sufficient to show that they were not married to each other at the date of the commission of the act, without showing that they were unmarried to third parties."

Quoting from the note on page 969: "When it is proved that the parties living together are not married to each other, this makes out a prima-facie case of fornication. It will not be necessary to prove that neither of them was married to anybody else, since that would be requiring the prosecution to prove a negative. The presumption, in the absence of proof of marriage, is that the parties were unmarried, and when it is proved that they were not married to each other this presumption attaches and the crime of fornication is made out."

Also Corpus Juris, p. 990, section 9, states the rule thus: "Since fornication cannot be committed by persons sustaining to each other the relation of husband and wife, it must appear from the indictment that such a relation did not exist."

In the instant case the state relied upon circumstances — living together in the same house since 1914, during which time the woman gave birth to several children, at least three — and, having alleged in the indictment that they were not married to each other, we are of the opinion that the burden was upon the state to prove said affirmation.

Reversed and remanded.