W. R. BRASWELL, PLAINTIFF IN ERROR,
v.
THE STATE OF FLORIDA, DEFENDANT IN ERROR
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W. R. Braswell was charged with living together openly in adultery with Sadie Tyre under Florida law. The Florida Supreme Court reversed his conviction, holding that the statute requires proof of open cohabitation as if in a legal marriage, not merely occasional illicit intercourse.
The conviction was reversed because the evidence was insufficient to prove the essential elements of the offense. To sustain a conviction under this statute, there must be open cohabitation as if in a legal marriage relationship; mere occasional illicit intercourse is not sufficient.
“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.”
Establishes the legal standard required to sustain a conviction under the adultery statute—open cohabitation is essential, not mere occasional intercourse.
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Join FLexlaw to unlock all legal intelligenceBraswell, a married man, allegedly had intimate relations with Sadie Tyre, a woman who came to his home as a servant. According to Tyre's testimony, t…
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West, J.
This prosecution is under Section 5406 of the Revised General Statutes. The indictment charges Plaintiff in Error, a married man, and Sadie Tyre, with living* together in an open state of adultery. A severance was granted. The Writ of Error is to review the judgment imposing sentence upon him.
The case is somewhat unusual, though in some respects not without ancient precedent. According to the evidence of the co-defendant, who was the only witness called on behalf of the State, she went as a handmaid into the childless home of plaintiff in error and his wife, somewhat as Hagar went into the home of Abraham and Sarah. After having lived in the home in the capacity of a servant for several months, and in order that plaintiff in error and his wife might “obtain children by hex',” it was agreed among them that plaintiff in error should “go in unto” her, which he .did from time to time, with the result that “she conceived” and bore a child.
The wife denies any such agreeement or knowledge of the alleged illegal relationship between the parties. She' admits the conception and birth of the child and testifies that the mother agreed that she, the wife of plaintiff in error, could have the child, which was at birth delivered to her, in consideration of which agreement she paid the hospital bills incurred at the accouchment and thereafter made periodical small contributions of money to the mother. Plaintiff in Error admits the alleged intimacy between them, but testifies that such illicit acts were occasional and surreptitious.
However reprehensible the condxxct of defendant may have been, the evidence is insufficient to make out essential elements of the offense denounced by the statute. To sustain a conviction xxnder this statute “there must be a living together openly as if the legal i'elation of husband and wife existed between the parties; a mere occasional illicit intercoux’se is not sufficient, but there must be a living or residing togteher openly as if the conjugal relation existed.” Grice v. State, 75 Fla. 751, 78 South. Rep. 984; Brevaldo v. State, 21 Fla. 789.
Upon authority of these cases the judgment is reversed.
Whitfield, P. J., and Terrell, J., concur. Browne, J., concurs in the opinion.
Ellis, J., dissents.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
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Purvis v. State, 377 So. 2d 674 (Fla. 1979)…hire.” The elements of these offenses, however, are different from fornication. A single act of illicit sex is sufficient to support a charge of fornication, but is insufficient to support prosecution for living in open adultery. Braswell v. State, 88 Fla. 183, 101 So. 232 (1924); Lockhart v. State, 79 Fla. 824, 85 So. 153 (1920). The effect of the fornication and adultery statutes taken together is that a married woman and her sexual partner cannot be punished for isolated instances of illicit sexual act…
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McLAUGHLIN v. Florida, 379 U.S. 184 (U.S. 1964)…ticipants be married to a third party. Conviction under either section requires a showing that, the parties lived together and maintained sexual relations over a period of time as in the conjugal relation between husband and wife. Braswell v. State, 88 Fla. 183, 101 So. 232 (1924), Lockhart v. State, 79 Fla. 824, 85 So. 153 (1920) (both cases involving what is now §798.01); Wildman v. State, 157 Fla. 334, 25 So. 2d 808 (1946), Benton v. State, 42 Fla. 560, 28 So. 774 (1900) (cases involving, respectively,…
Authorities Cited
- Brevaldo v. State, 21 Fla. 789 (Fla. 1886)
- Grice v. State, 75 Fla. 751 (Fla. 1918)