HOUSLEY ET AL. v. STATE

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Docket Number

No. 35814.

Attorney(S)

J.H. Garth, of Hazlehurst, and H.C. Stringer, of Jackson, for appellant. The state must prove some specific instances of sexual intercourse of appellant within the limitation period. This it failed to do. Granberry v. State, 61 Miss. 440; Spikes v. State, 98 Miss. 483, 54 So. 1; Lee v. City of Oxford, 134 Miss. 647, 99 So. 509. The trial court should have excluded evidence of acts of cohabitation prior to the limitation period. Greek L. Rice, Attorney General, by R.O. Arrington, Assistant Attorney General, for appellee. Evidence tending to prove improper familiarity and criminal intimacy between the parties at a period within the statute of limitations had been produced, and testimony of similar acts and conduct between the parties, both prior and subsequent to the finding of the indictment, was admissible to illustrate or characterize the relations and conduct of the parties shown to have existed or to have occurred within the time covered by the indictment. Stewart et al. v. State, 64 Miss. 626, 2 So. 73. Where a cohabitation, using the word in its usual sense, is shown, one or more acts of sexual intercourse clearly proven, or circumstances from which the fact of such intercourse would necessarily be inferred, as that the parties slept in the same bed, would uphold a verdict of guilty. Granberry v. State, 61 Miss. 440; Kinard v. State, 57 Miss. 132; Code of 1942, Sec. 1998. Argued orally by H.C. Stringer, for appellant, and by R.O. Arrington, for appellee.

Judges

Smith, C.J., delivered the opinion of the court.

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HOUSLEY et al. v. STATE.

1. CRIMINAL LAW.

In prosecution for unlawful cohabitation, where evidence disclosed cohabitation by defendants within period of limitation, evidence of cohabitation prior to limitation period was admissible to illustrate or characterize the relation and conduct of defendants shown to have existed or have occurred within time covered by indictment (Code 1942, sec. 1998).

2. CRIMINAL LAW.

In prosecution for unlawful cohabitation, the former indictment and acquittal of defendants of a similar offense some time prior to the finding of indictment under which they were tried did not preclude state from introducing evidence of improper familiarity and criminal intimacy between defendants prior to the finding of former indictment (Code 1942, sec. 1998).

Smith, C.J., delivered the opinion of the court.

The appellants were convicted of unlawful cohabitation within the meaning of Sec. 1998, Miss. Code 1942. The evidence for the state disclosed cohabitation by the parties within the period of limitation, and over their objection evidence was introduced indicating continuous cohabitation by them for several years prior, and up to the beginning of, that period. This evidence "was admissible to illustrate or characterize the relations and conduct of the parties shown to have existed or to have occurred within the time covered by the indictment." Stewart et al. v. State, 64 Miss. 626, 2 So. 73, 74.

While the fact was not there referred to in the Court's opinion, it appears from the reporter's statement of the case that the evidence under consideration was of conduct prior to the beginning of the period of limitation. That such evidence is admissible is in accord with the authorities elsewhere. 2 Wigmore (3rd Ed.), Secs. 398 and 399, note 1.

The appellants brought into the evidence the fact that they had been indicted and acquitted of a similar offense sometime prior to the finding of the indictment under which they were here tried, and the state introduced over their objection evidence of improper familiarity and criminal intimacy between the parties prior to the finding of the former indictment. This evidence is within the principle governing that heretofore discussed, and was admissible for the same purpose. State v. Wheeler, 104 N.C. 893, 10 S.E. 491.

Affirmed.

HOUSLEY et al. v. STATE.

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