Lascivious Cohabitation

The act or state of a man and woman, not married, who dwell together in the same house, behaving themselves as man and wife. In statutes forbidding unlawful cohabitation that term involves the idea of habitual sexual intercourse, or living together in such a way as to hold out the appearance of being husband and wife, and it is the scandal resulting therefrom which constitutes the mischief against which the statutes are directed; Luster v. State, 23 Fla. 339, 2 South. 690; and proof of occasional acts of illicit intercourse is not suflicicnt; Pruner v. Com., 82 Va. 115; State v. Miller, 42 W. Va. 215, 24 S. E. 882; Brown v. State (Miss.) 8 South. 257; but it has been bcld that such occasional acts may constitute the offence, unless there was no intention of continuing the intercourse, as desire and opportunity might arise; Wright v. State, 108 Ala. GO, 18 South. 941. To constitute the offence there must be both lewd and lascivious intercourse and living together; Jones v. Com., 80 Va. 20; Pinson v. State, 28 Fla. 735, 9 South. 706; though It is said that there need not be actual assertion of the e.xistence of marriage; Kinard v. State, 67 Miss. 132; Sullivan v. State, 32 Ark. 187; and where the dwelling together is a lawful relation, as that of master and servant, the offence is not established; State v. Osborne, 39 Mo. App. 372. It is not sustained by evidence of acts of secret adultery or mere familiarity; State V. Phillips, 49 Mo. App. 325; nor where a man and woman stopped for one night only at a house and assumed marital relations; Turney v. State, 60 Ark. 259, 29 S. W. 893; Com. v. Calef, 10 Mass. 153; State v. Crowner, 56 Mo. 147; but it is said that it is not necessary that the cohabitation should be notorious; State v. Cagle, 2 Humph. (Tenn.) 414. General reputation in the neighborhood is not admis.sible to prove the fact of cohabitation; Overstreet v. State, 3 How. (Miss.) 328. Whether the facts proved constituted a living together in such relation is a question for the Jury; Pinson v. State, 28 Fla. 735, 9 South. 706. There must be averment and proof of habitual sexual intercourse which is the gist of the offence; Newman v. State, 69 Miss. 393, 10 South. 680. In Massachusetts, the words “abide and cohabit” are su Caclent where the statute used the word “associated”; Com. V. Dill, 159 Mass. 61, 34 N. E. and were not married, was held sufficient, the language of the statute that they should “lewdly and lasciviously associate” being implied; State v. Stubbs, 108 N. C. 774, 13 S. E. 00. The offence may be proved by admission made out of court, and proved by two witnesses; U. S. v. Schow, 6 Utah 381, 24 Pac. 30. Evidence of previous lascivious cohabitation is sometimes admitted in support of other crimes, as on prosecution for incest; People V. Skutt, 96 Mich. 449, 56 N. W. 11; Burnett v. State, 32 Tex. Cr. R. 86, 22 S. W. 47. It is not essential in a prosecution against one to prove that both parties had a guilty intent; State v. Cutshall, 109 N. C. 7G4, 14 S. E. 107, 2G Am. St. Rep. 699. When the charge is of such cohabitation of a married man with an unmarried woman, the marriage must be strictly proved, and it cannot be established by reputation; State V. Coffee, 39 Mo. App. 66. It has been held that a man and woman living together as man and wife, in the belief that they are married, cannot be convicted of “open lewdncss”; Com. v. Munson, 127 Mass. 459, 34 Am. Rep. 411; Schoudel v. State, 57 N. J. L. 209, 30 Atl. 598. See 111 U. C. 725. Under the United States anti-polygamy act of March 22, 1882, on prosecution for cohabitation with two women as wives, proof of the existence of the marriage relation is pertinent, and it may be proved by general reputation; U. S. v. Higgerson, 46 Fed. 750;

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