DOROTHY WILDMAN
v.
STATE OF FLORIDA
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The court held that the evidence was insufficient to sustain convictions for lewdly and lasciviously associating and cohabiting.
Appellant was convicted of lewdly and lasciviously associating and cohabiting with Oscar Dowdell, a man who was not her husband. Evidence included con…
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Appellant was convicted of violating Sections 798.02 and 798.05, Fla. Stat. ’41, F.S.A., in that she did, lewdly and lasciviously, associate and cohabit with one Oscar Dowdell who was not her husband. The second charge is that appellant, a white woman, and the said Dowdell, a negro man, did habitually live in and occupy, in the night time, the same room.
The question before us is whether the evidence is sufficient to sustain the convictions. Heretofore the statutes have been construed by us and the rule has been established that in order to convict of the first offense there must be proved both a lewd and lascivious intercourse and a living together as in the conjugal relation between husband and wife. See Luster v. State, 23 Fla. 339, 2 So. 690; Pinson v. State, 28 Fla. 735, 9 So. 706; Penton v. State, 42 Fla. 560, 28 So. 774; Whitehead *335v. State, 48 Fla. 64, 37 So. 302; Langford v. State, 124 Fla. 428, 168 So. 528. The difficulty here as in most cases, lies in the application of the law to the facts.
The evidence consists of confessions of sexual intercourse and observations on the premises by deputy sheriffs, which is indicated that Dowdell maintained no abode in the apartment but his visits there were only to gratify the mutual sexual desires of the parties.
Dowdell had a wife and home in the City of Miami but was provided with a key to the apartment owned and occupied by appellant. About twice a week, over a fifteen months’ period, Dowdell would go to the apartment in the night time for the purpose of sexual intercourse with appellant.
When the evidence is measured by the decisions of this Court it is insufficient to sustain a conviction on either charge.
The judgments are reversed and a new trial is granted.
Reversed.
TERRELL, BROWN, BUFORD and SEBRING, JJ., concur.
CHAPMAN, C. J., and THOMAS, J., dissent.
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Citator
Cited By
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Campbell v. State, 331 So. 2d 289 (Fla. 1976)…te, 28 Fla. 735, 9 So. 706 (1891); Thomas v. State, 39 Fla. 437, 22 So. 725 (1897); Penton v. State, 42 Fla. 560, 28 So. 774 (1900); Whitehead v. State, 48 Fla. 64, 37 So. 302 (1904); Cloud v. State, 64 Fla. 237, 60 So. 180 (1912); Wildman v. State, 157 Fla. 334, 25 So. 2d 808 (1946). This Court reversed each of those seven convictions. The other three convictions were generated by that portion of the statute which contains the language now under review. Two were reviewed by this Court and reversed. Kittles…1 / 2
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Callen v. State, 94 So. 2d 603 (Fla. 1957)…PER CURIAM. Reversed on authority of Luster v. State, 1887, 23 Fla. 339, 2 So. 690; Cloud v. State, 1912, 64 Fla. 237, 60 So. 180; Wildman v. State, 1946, 157 Fla. 334, 25 So. 2d 808, and like cases. TERRELL, C. J., and HOBSON, DREW and O’CONNELL, JJ., concur.…
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McLAUGHLIN v. Florida, 379 U.S. 184 (U.S. 1964)…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, §798.02 and what is now that statute). Unlike all the other sections of chapter 798, § 798.03 does not relate only to habitual conduct. It proscribes single and…
Authorities Cited
- Pinson v. State, 28 Fla. 735 (Fla. 1891)
- Luster v. State, 23 Fla. 339 (Fla. 1887)
- Abb Penton and Zada Edgar v. State, 42 Fla. 560 (Fla. 1900)
- Whitehead v. State, 48 Fla. 64 (Fla. 1904)
- Langford v. State, 124 Fla. 428 (Fla. 1936)