
    Jeff Whitehead, Plaintiff in Error, v. The State of Florida, Defendant in Error.
    
    Criminal Law — Lewd and Lascivious Cohabitation — What Must be Proved.
    To convict of the crime of lewd and lascivious cohabitation, denounced by section 2596, Revised Statutes, there must be proved both lewd and lascivious intercourse, and a living or dwelling together as though the conjugal relation existed between the parties. Where the proofs show a residing together of the parties, but are silent as to any lewd and lascivious intercourse between them, there can be no conviction of the crime.
    This case was decided by Division A.
    Writ of error to the Circuit Court for Holmes county.
    The facts in the case are stated in the opinion of the court.
    
      Liddon & Smith for plaintiff in error.
    
      W. H. Ellis, Attorney-General, for the State.
   Taylor, C. J.

The plaintiff in error, Jeff Whitehead, together with one Alice Peterson, was indicted, tried and convicted of the crime of lewd and lascivious cohabitation, in the Circuit Court of Holmes county, and from the sentence imposed the said Jeff Whitehead seeks relief here by writ of error. Several errors are assigned upon rulings on applications for postponement of the trial to procure the attendance of absent witnesses, but from the conclusion we have reached as to the merits of the case it becomes unnecessary. to pass upon such assignments of error.

The defendant moved for new trial upon the ground, among others, that the verdict was not warranted or supported by the evidence. This motion was denied, exception duly taken, and its denial is assigned as error.

By a long line of decisions here, as elsewhere, it is settled that to convict of the offence of lewd and lascivious cohabitation and association, denounced by section 2596, Revised Statutes, there must be proved both a lewd and lascivious intercourse, and a living or dwelling together as if the conjugal relation existed between the parties. Penton v. State, 42 Fla. 560, 28 South. Rep. 774; Pinson v. State, 28 Fla. 735, 9 South. Rep. 706; Thomas v. State, 39 Fla. 437, 22 South. Rep. 725; Luster v. State, 23 Fla. 339, 2 South. Rep. 690. No useful purpose can be subserved by recapitulating the proofs in the case here, but it will be sufficient to say that while it shows that the defendant, Jeff Whitehead, sometimes lived at the house of the other defendant, Alice Peterson, while several other persons also resided there, yet there is a total lack of proof to show that at any time within the statutory period of two years before the finding of the indictment there was any lewd and lascivious cohabitation or intercourse between them. For this failure in the proofs there could not properly be a conviction.

The judgment of the Circuit Court is reversed and a new trial awarded at the cost of the county of Holmes.

Hocker and Cockrell, JJ., concur.

Carter, Shackleford and Whitfield, JJ., concur in the opinion.  