## Facts

- Henry Thomas and Mary Long were jointly charged in Volusia County with “lewd and lascivious cohabitation” under § 2596, Florida Revised Statutes.
- Near midnight on February 21, 1897, the county sheriff went to Mary Long’s residence believing Thomas was inside with her.
- The sheriff heard movement suggesting the occupants had been in bed, demanded they come out, and heard activity near a trap door as if someone was attempting to conceal himself.
- The sheriff forced entry and found Thomas and Long together in the room; Long was in nightclothes and Thomas was partially dressed.
- Other witnesses placed Thomas and Long together on the premises at various times (e.g., seen together outside), but none testified they had observed the pair living together or sharing a bed.
- A defense witness living nearby testified he had not observed Thomas frequenting Long’s house or conduct suggesting they lived together as spouses.
- A jury convicted both defendants; the trial court denied a motion for new trial asserting the evidence was insufficient.

## Issues

1. Whether § 2596’s prohibition on lewd and lascivious “association and cohabitation” requires proof that the parties lived or dwelt together openly as if husband and wife.
2. Whether evidence indicating one or more clandestine sexual encounters, without proof of an ongoing shared household, is sufficient to sustain a conviction for lewd and lascivious cohabitation.

## Decision

- The Florida Supreme Court reversed the convictions and remanded for a new trial.
- The court held the evidence was legally insufficient to prove the charged offense because it showed, at most, suspected illicit intercourse on an occasion, not open cohabitation.
- The trial court erred in denying the defendants’ motion for new trial based on evidentiary insufficiency.

## Legal Principles

- To convict under § 2596 for lewd and lascivious association and cohabitation, the evidence must show a lewd or lascivious *dwelling or living together*.
- The offense requires proof that the parties *openly* lived together as though a conjugal (husband-and-wife) relation existed.
- Proof of occasional secret acts of illicit intercourse, standing alone, does not satisfy the statutory “associate and cohabit together” element.
- The offense includes both (1) lewd and lascivious intercourse and (2) living or dwelling together as if the conjugal relation existed.

## Conclusion

The court set aside the convictions because the prosecution failed to prove the statutory element of open, quasi-marital cohabitation; evidence suggesting clandestine sexual conduct without proof of an ongoing shared residence does not meet § 2596’s requirements.


Thomas v. State, 22 So. 725 (Fla. 1897)